In news that probably makes all State Broadband Offices nervous, Cox Communications has sued the Rhode Island Commerce Commission – which is the group that is heading up the BEAD grant effort. This raises the uncomfortable position that ISPs who feel shorted in the BEAD process could sue Broadband Offices as a way to be heard.

What’s particularly uncomfortable about the Rhode Island lawsuit is that the issues at the heart of the complaint involves the broadband maps used for BEAD grants. I doubt that any Broadband Office is comfortable with their BEAD maps. These maps derive from the FCC broadband maps, and each state modifies the maps through a BEAD map challenge process. Every time I’ve sat with an ISP or a county government and looked at the maps at the household level that there are still many aspects of the maps that are disturbing. The maps include eligible BEAD locations where there are no buildings, multiple BEAD locations where there is only one building or buildings that don’t have an associated BEAD location. The degree to which the maps are off differs from neighborhood to neighborhood. Of more concern and germane to this lawsuit are the broadband speeds claimed at every location – many speeds are clearly fictional and come from the FCC rule that allows ISPs to report ‘marketing’ speeds on the maps rather than some approximation of actual speeds.

The Cox challenge says the State is trying to award BEAD dollars to affluent parts of the state that don’t need broadband while missing areas that could use the grant help. There are already quotes in the press from the State complaining that that Cox didn’t participate in the BEAD data gathering or map challenge process.

Cox goes on to accuse the State of using a map challenge process that is impossible to follow. The suggestions on how to conduct a BEAD challenge came from the NTIA, and the rules are hard to meet. To provide or disprove having broadband at a location requires conducting multiple speed tests at different times of the day – something that is hard to convince a resident to do. The tests have to be conducted during a short time frame during a map challenge process. Cox gave the example of how impossible it would be for them to gather the needed speed tests from their own customers.

I heard the same complaint from local governments that tried to meet the speed challenge rules but couldn’t. A local government doesn’t know who subscribes to each ISP, and before even thinking of mounting a map challenge against a specific ISP they had to somehow find customers of that ISP willing to take the challenge.

I don’t know enough about the Rhode Island situation to have an opinion. What is troublesome about the lawsuit is that it’s bound to put the BEAD grant process in the State on hold. A judge is unlikely to let the State move forward with the BEAD grant, since doing so would be essentially siding with the State without considering Cox’s side of the story.

There are ISPs all over the country who are unhappy with the BEAD maps and the state BEAD map challenges. Any one of them could sue if a State rules against them in the map challenge process.

The threat of lawsuits goes way beyond just the mapping issues. It’s not impossible to foresee somebody suing State Broadband Offices over other issues. For example, some states are forcing BEAD winners to offer low rates – something that specifically prohibited in the IIJA legislation. There are states that have taken positions against using technologies other than fiber. There are states that are trying to require an ISP to serve entire county to qualify for a grant. Any one of these decisions disadvantages somebody and could lead to suits.

Any lawsuits against a State Broadband Office will mean an interminable delay. For example, even if Rhode Island concedes that the map challenge rules were unfair, it would probably have to open the map challenge again using a new set of rules.