By next week we’re going to see the opening shots in the battle for setting an official definition of upload broadband speeds. You might expect that this is a topic that would be debated at the FCC, but this battle is coming as a result of questions asked by the U.S. Department of Treasury as part of defining how to use the grant monies from the American Rescue Plan Act. Treasury has oddly been put in charge of deciding how to use $10 billion of direct broadband grants and some portion of the gigantic $350 billion in funding that is going directly to counties, cities, and towns across the country.

Treasury asked for comments through a series of questions about the broadband speeds of technologies that should be supported with the grant funding. The questions ask for a discussion of the pros and cons of requiring that grant dollars are used to built technologies that can achieve speeds of 100/20 Mbps versus 100/100 Mbps.

Treasury is not likely to see many comments on the requirement that grant deployments must meet 100 Mbps download speeds. All of the major broadband technologies will claim the ability to meet that speed – be that fiber, cable company hybrid-fiber networks, fixed wireless provided by WISPs, or low-orbit satellites. The only industry segment that might take exception to a 100 Mbps download requirement is fixed cellular broadband which can only meet that kind of speed for a short distance from a tower.

But asking the difference between upload speeds of 20 Mbps versus 100 Mbps has already set off a firestorm of comments around the industry. There are only a few technologies that can reasonably meet 100 Mbps upload speeds – fiber, fiber-to-the-curb as being deployed by Verizon, and wireless mesh networks that bounce millimeter wave spectrum from building to building. Setting the definition of upload bandwidth at 100 Mbps will exclude major technologies such as cable company broadband, fixed wireless, and fixed cellular. Both speed definitions happily put DSL out to pasture for receiving grant funding. We’ve already seen opponents of a 100 Mbps definition of upload speed start publicly making the arguments against symmetrical bandwidth.

A recent blog on the WISPA website argues that argues for upload speeds of 5 Mbps to 10 Mbps. The blog argues that it costs more to build 100/100 Mbps networks (as a way to remind that fixed wireless costs a lot less than fiber).

We know the cable industry is going to come out hard against any definition up upload speed greater than 20 Mbps – since that’s what most cable networks are delivering. In a show of solidarity with the rest of the cable industry, Altice recently announced that it will lower current upload speeds of 35 – 50 Mbps down to 5 – 10 Mbps. This is clearly being done to allow the cable industry to have a united front to argue against faster upload speeds. This act is one of most bizarre reactions that I’ve ever seen from an ISP to potential regulation and a direct poke in the eye to Altice customers.

Back in March, we saw Joan Marsh, the AT&T Executive VP argue that 21^st-century broadband doesn’t need upload speeds greater than 10 Mbps. This was an argument that clearly was clearly meant to support using grant funds for rural fixed cellular technology. It’s an odd position to take for the second largest fiber provider in the country.

This is a discussion that should be held at the FCC. However, that agency has punted several times over the last three years on the topic of redefining the definition of broadband. The Ajit Pai FCC announced in several annual reports to Congress that the definition of broadband of 25/3 Mbps is still adequate. I think it’s clear that the Pai-led FCC did not want to take any blame for reclassifying millions of homes as not having broadband.

It’s interesting that Treasury is even involved in broadband grants. But Congress pushed the biggest pile of grant money to Treasury instead of to the FCC or the NTIA – the two agencies with the biggest historic roles in broadband policy. But since Treasury is the agency asking these questions, I have to think that whatever answer Treasury settles on is going to hold big sway moving forward.

This is a topic that the FCC should be tackling, but oddly, the White House is now a half-year into the new administration without recommending a fifth FCC commissioner. Until that position is filled, it seems unlikely that the FCC will tackle the re-regulation of broadband and issues like the definition of broadband. Treasury is going to need to resolve this question quickly since local governments are itching to make final plans for using the ARPA funding.