What's the FCC Got to Do With It?: How the FCC's Repeal of Net Neutrality Affects Telehealth, Contributing to Inequities and Disparities.

• Author: McAlpin, Margaret

TABLE OF CONTENTS I. INTRODUCTION 173 II. BACKGROUND 174 A. History and Development of Telehealth 174 B. Broadband's Importance to Telehealth Technology 175 C. The History of Net Neutrality and the Surrounding Debate 176 D. Technologies Employed in Telehealth 178 III. WHAT NET NEUTRALITY'S REPEAL MEANS FOR TELEHEALTH 180 A. How the Repeal will Affect Telehealth Growth and Innovation 180 1. Prioritization for Creators of Telehealth Technologies 181 a. The Costs of Building Broadband in Rural Areas 183 b. Large Providers Do Not Face the Same Financial Hurdles as Rural and Small Providers 184 c. Paid Prioritization and Health Care Consolidation 186 d. Prioritization Allows for Increased Investment in Larger Health and Hospital Systems 187 2. Antitrust Law May Be Insufficient to Remedy the Harm to Competition and Innovation Caused By Paid Prioritization Arrangements 188 IV. SOLUTIONS TO PREVENT THE STIFLING OF TELEHEALTH GROWTH AND INNOVATION 190 A. Are Current FCC Programs Enough? 190 B. State Health Regulation vs. Telecommunication Regulation 191 C A Health Care Exception? 192 D. Municipality/Community Built Networks 194 V. CONCLUSION 195 I. INTRODUCTION

It is estimated that by the year 2035, the world will have a shortage of 12.9 million health care providers. (1) In the United States by 2032, there will be a shortage of roughly 21,100 to 55,200 physicians needed to provide primary care. (2) Other physician specialties will see a shortage of about 24,800 to 65,800 physicians. (3) In the face of this national and global health care provider shortage, telehealth is becoming increasingly important to ensure individuals have access to care. (4) Telehealth involves "the use of digital information and communication technologies, such as computers and mobile devices, to access health care services remotely." (5) As modern telehealth technology and policy is shaped, the telecommunications field should be monitored closely to determine which regulations and policies will have implications for the field.

Section II of this Note will discuss telehealth and telemedicine's history, why broadband technology is important to the field, and the various technologies telehealth employs. Section II will also discuss the history and background of net neutrality regulations and their subsequent repeal by the FCC. Section III will examine the FCC's 2017 Restoring Internet Freedom Order (6) and its implications for telehealth. The section will also focus on the ability of telehealth technology innovators and health systems and providers to have their content prioritized.

Section IV will explore possible solutions to mitigate any harm that current telecommunications policies and regulations have on telehealth. Specifically, current FCC programs related to telehealth will be evaluated to determine if these programs provide adequate support to telehealth in light of the net neutrality repeal. Additionally, this Section will propose a health care exception to the FCC rules and the deployment of local or municipal-built networks for telehealth.

2. BACKGROUND

   1. History and Development of Telehealth

      Some believe that telehealth is a recent development due to technological advances, but if telehealth can be understood as "[t]he delivery of health care services at a distance" (7) then telehealth has existed for centuries. In times where infectious diseases were a leading cause of death in the western world, bells or flags were used to warn individuals and prevent the further spread of disease. (8) Telehealth, as it is understood in a modern sense, is the "use of telecommunications and virtual technology to deliver health care outside of traditional health-care facilities." (9) Thus, telehealth is a broad term that describes a wide variety of health care services that utilize telecommunications technology. Telemedicine is the delivery of clinical medical care by physicians using telecommunications technology, (10) while telehealth services include but are not limited to clinical patient care, (11) and can be delivered by a variety of health care professionals other than physicians. (12) For the purpose of this Note, the terms "telehealth" and "telemedicine" will not be used interchangeably. The term telehealth will be used in discussion and analysis of the field's interaction with telecommunications policy, although further discussion of the history of this field will focus on telemedicine.

      Modern telemedicine began in the United States in the 1960s. (13) A well-known example of one of the first uses of telemedicine is the Nebraska Psychiatric Institute, established at the University of Nebraska's medical school. (14) Physicians at the institute used a closed circuit television to provide psychiatric consultation services to staff at Norfolk State Hospital. (15) Beginning in the 1970s and lasting for approximately two decades, interest in telemedicine diminished. (16) This was largely due to "high costs of the technology, the poor quality of images, a lack of uptake services, [and] an inability to interface telemedicine with mainstream health care provision." (17) Although telemedicine was not being used by the "general health care sector[,]" (18) other sectors continued to use telemedicine, including NASA and the U.S. military. (19)

      By the mid-1990s, however, telemedicine was once again viewed as a relevant solution to address health care access and quality issues. (20) Telemedicine also gained the interest of the health care community because of its ability to reduce costs in health care delivery. (21) As telemedicine was further developed, physicians were able to treat a variety of illnesses remotely, such as providing stroke care, (22) radiology services, (23) and treating individuals with HIV/AIDS. (24)

      Today, telehealth services have become increasingly important for delivery of healthcare, especially to individuals living in rural communities. (25) Individuals in rural communities face unique challenges compared to their urban and suburban peers; they often have to travel long distances to receive health care services and typically do not have access to sophisticated equipment or medical specialists. (26) Telehealth services have had a notable positive impact on other groups, such as the elderly and disabled. (27) Telehealth is useful for seniors and the disabled because they can receive care in their homes rather than having to seek care from nursing homes or caregivers. (28) Additionally, there are programs, such as the Oregon Center for Aging and Technology, that have "[studied] the use of in-home sensors as a way to track cognitive decline" among the elderly, which could lead to earlier diagnosis of cognitive diseases. (29)

   2. Broadband's Importance to Telehealth Technology

      The positive impact telehealth has is largely a result of the development of broadband technology. Broadband is "high-speed Internet access... faster than traditional dial-up access." (30) Although there are conflicting views on what speeds constitute broadband, the FCC's current benchmark for broadband is 25 Mbps download speed and 3 Mbps upload speed. (31) There are several different types of broadband connections that deliver telecommunication services, such as digital subscriber line (DSL), cable modem, fiber, wireless, and satellite. (32) DSL provides broadband access through copper telephone lines, whereas fiber connections transmit data by "convert[ing] electrical signals to light and send[ing] the light through transparent glass fibers." (33) Wireless broadband connections link customers to providers through mobile or fixed connections, by radio airwaves. (34) Satellite technology is a subset of wireless technology. (35) Both wireless and satellite broadband delivery are used in rural areas where other technologies such as DSL are not available. (36)

      Broadband technologies have provided consumers with access to the Internet at higher speeds due to innovation in technologies used to deliver service. (37) Faster Internet service has increased the speed at which health data can be disseminated, thus facilitating the growth of telehealth services. (38) Broadband has also led to growth in telehealth due to the ability to cut costs by eliminating the need for travel and by creating efficiencies from greater access to medical specialists who can quickly detect and treat illnesses. (39)

   3. The History of Net Neutrality and the Surrounding Debate

      Telehealth's foundation and ultimate success is rooted in broadband technology, therefore telecommunication policies that govern broadband have serious implications for the successful delivery of care through telehealth. Net neutrality has been a hot topic, from its adoption by the FCC in 2015, (40) to its repeal, which took effect in 2018. (41) The concept of net neutrality is commonly understood to be that "owners of the networks that compose and provide access to the Internet should not control how consumers lawfully use that network, and... should not be able to discriminate against content provider access to that network." (42) It is helpful to explore the events and actions by the FCC that led to the adoption of net neutrality rules and their subsequent repeal.

      In 2005, the Supreme Court sustained an earlier decision by the FCC holding that cable companies who offer Internet access are an information service. (43) In the same year, the FCC classified Internet service provided by telephone companies as an information service. (44) Because the FCC ruled that cable and telephone companies offering Internet access were information services and fell under Title I of the Communications Act, (45) they were not subject to the more stringent standards of Title II, which are applied to common carriers that traditionally provide telecommunication services. (46) In 2010, the FCC issued an order aimed at regulating the practices of Internet service providers ("ISPs"). (47) The FCC's 2010 Order implemented net...