By: Joseph Woodson
24/7 Rush Hour Traffic
Technology advances fast—much faster than government. In the time since the Federal Communication Commission (“FCC”) updated the nation’s broadband table stakes, the public’s need for high speed internet significantly changed. Cellphones, televisions, smart home devices, tablets, laptops, game consoles, etc. All these electronics are normally and routinely relied on in the average household. Generally, these household devices are connected to one internet source, often running simultaneously. During the COVID-19 pandemic, more people than ever are relying on the internet for work, education, entertainment, and connection.
Telecommunication networks function like highways. When too many devices connect to a broadband network simultaneously, overall network performance slows. Just as when too many cars drive on a highway simultaneously, overall speed for everyone traveling slows. With so many people constantly at home due to the pandemic (working, video conferencing, playing, watching, shopping, etc.) network traffic increases and network performance slows for everyone.
From home-to-home and apartment-to-apartment, we all generally share a larger network outside our homes. Most neighborhoods rely on interconnected cable or fiber optic networks for internet service. Our travel time on ISP highways isn’t solely dependent upon our own usage. Our internet speed is limited by our neighbors’ usage, as well. The internet service consumers pay for is permission to receive and send information back and forth along cable (or fiber optic) highways internet service providers (ISPs) placed in our neighborhoods. In many areas, ISPs failed to repave these highways for over two decades and have little incentive to do so. When everyone in the neighborhood is online simultaneously, we pull from a neighborhood service tower, often traveling up and down decrepit and congested lanes. Recently, social distancing orders are causing more people to traffic our neighborhood telecommunication network because more people are at home for public health purposes.
America Needs a System Update
Antiquated telephone era telecommunication policies are negatively impacting public health and slowing economic recovery in wake of the COVID-19 pandemic. Today’s telecommunication policies are largely built upon Reagan era initiatives purposed to ensure all Americans could access telephone emergency services. The Obama administration expanded Reagan era telephone based policy initiatives by increasing access to wireless telephone service. The federal government’s resistance to prioritizing universal fixed high-speed internet access largely is a product of legislators’ attachment to things that are familiar. Representatives, Senators, and other legislators invested time and energy learning and understanding telephone era policy. For many, the learning curve required to re-imagine and reconstruct telecommunication policy primarily around internet access is too difficult.
Congress’ antiquated telecommunication policies are problematic because there is a direct cause-and-effect relationship between fixed high-speed internet access and economic growth. Even courts have recognized that “computers and internet access have become virtually indispensable in the modern world of communications and information gathering.” However, America’s telecommunication infrastructure is unable to provide adequate fixed high-speed internet to all. Rural areas and affordability of service are the twin elephants obstructing progress and accessibility.
Former FCC Chairperson, Tom Wheeler, contends the federal government’s decade long crusade to strengthen rural broadband networks has not progressed enough to meet today’s challenges. The national standard for fixed high-speed broadband is: “internet service delivered at least at 25 megabits per sec (mbps) downstream (to the home) and [merely] 3 (mbps) upstream (out of the home)”. (emphasis added). For context, with a download speed of 25 Mbps, a household can utilize 1 or 2 devices to “web surf, email, social network, or stream a video.” Hosting more than one Zoom conference simultaneously at merely 3 Mbps upstream is not possible.
Now, imagine the average American family household during lockdown: Dad streaming music while cooking dinner on the Amazon Echo, Ma on a Zoom conference call, Jill dropping in on Fortnite with her friends, Jack streaming a Cal State lecture, and Grandma reading on her tablet. Everyone is at home and online at the same time. Internet service at 25 mbps download and 3 mbps upstream does not satisfy the modern family’s telecommunication needs. Unfortunately, “as technology and time have moved on… the FCC’s broadband definition has not.”
Fixed High-Speed Internet Is Essential for Public Health and Economic Recovery
To address the COVID-19 public health and economic crisis, Congress passed the HEROES Act, which cost $3 trillion. According the FCC, it would only cost the federal government $80 billion (a mere 4/150th of a multi-trillion dollar economic relief package) for a one-time-infrastructure upgrade to deliver fixed high-speed broadband to all Americans. Internet access allows people to adhere to social distancing and stay-at-home orders while maintaining a level of normalcy and economic productivity. The need for high-speed fixed internet networks is dire.
The internet is now the backbone of America. It is comprised of academic, governmental, and economic information systems. Americans, across the board, need access to such systems. Providing fixed high-speed internet to all Americans will speed economic recovery and create growth due to increased market participation. Americans with high-speed internet access are able to adhere to social distancing orders more effectively than those without such internet service. For these reasons, upgrading America’s telecommunication infrastructure should be a top priority for our nation and included in future economic stimulus packages.
 Table Stakes are considered the consumer’s standard for services worth paying for. Today, the FCC’s table stakes for fixed high-speed broadband is 25 mbps download and 3 mbps upload.
 Federal Communication Commission, 2020 Broadband Deployment Report, Washington D.C. 20554, Adopted April 20, 2020. See Introduction, Background, Evaluating Deployment of Advanced Telecommunications Capability to All Americans In a Reasonable And Timely Fashion § (A) Defining Advanced Telecommunications Capability.
 Id; see also Tom Wheeler 2020 (cited below).
 FCC. 2020.
 .” See In re Ramon Stevens, on Habeas Corpus, 119 Cal. App. 4th 1228 (2 Dist. Div. 6 2004) (citing United States v. Peterson, 248 F.3d 79, 83-84 (2d. Cir. 2001)).
 Tom Wheeler, 5 Steps to Get the Internet to all Americans, Brookings Institute, http//: www.Brookings.edu/research-all-americans/5-steps-to-get-the-internet-to-all-americans. (April 2020). Date Accessed 08/15/2020.
 Id. See Also FCC Report above.
 Don Reisnger, Brian Westover, What internet speed do I need? Here’s how many Mbps is enough?, Tom’s Guide, 08/27/2020. https://www.tomsguide.com/us/internet-speed-what-you-need,news-24289.html
 Tom Wheeler (2020).
 Alicia Adamczyk, HEROES Act would provide another stimulus check, broader student loan relief, May 16, 2020 https://www.cnbc.com/2020/05/16/what-you-need-to-know-about-the-heroes-act.html
 Tom Wheeler, 2020. (Estimates for Universal Fixed Broadband delivered at 25 mbps/ 3 mbps, higher speed requires more funds).
 Schweiger, The Path of E-Law: Liberty, Property, and Democracy from the Colonies to the Republic of Cyberia (1998) 24 Rutgers Computer and Technology Law Journal 223.
 Tom Wheeler, 2020.