Author Archives: Doug Dawson, CCG Consulting

Justifying Cuts to BEAD

NTIA Assistant Secretary Arielle Roth recently made a speech at the Hudson Institute that outlined her policy positions related to reshaping the BEAD program. The changes to BEAD were initiated by Commerce Secretary Lutnick and are now being finalized and implemented by Roth. The bottom-line impact of the changes will be to cut the amount of spending from the BEAD grant program roughly in half, with the savings returned to the Treasury.

Roth says that the changes are not just about saving money. Her position is that the cuts being made are to make sure that the government doesn’t distort or sabotage the pace of technological innovation.  To quote Roth, When the government overspends or over-subsidizes a single technology, it doesn’t just waste funds; it warps the progress of innovation. Excessive subsidies crowd out private investment, slow down research and development, and delay technological progress. That’s counterproductive to BEAD’s mission, which is to close broadband gaps, not freeze technology in place. In a field as dynamic as broadband, minimizing distortion is critical, because in every case, the most significant breakthroughs in connecting rural Americans have come not from subsidies, but from technological innovation itself.

That’s an amazing policy position to take related to rural broadband. I’d like to put her position into a bigger perspective. Her argument is a good one related to the whole broadband industry. I don’t know anybody who would argue that the federal government should help to pick technology winners for the entire industry. The market today is taking care of that pretty well. Over the past several years, over 14.5 million customers have chosen to buy broadband from the FWA cellular companies, much to the dismay of the cable companies. A recent article said that major fiber overbuilders in urban and suburban markets are seeing penetration rates between 35% and 45%. Starlink has grown to have four million U.S. broadband customers. It seems like the overall market is working pretty well, being fueled by private capital and head-to-head competition.

But even there, the federal government can’t help itself from fiddling at least a little bit with the market. Congress recently directed the FCC to rework mid-band spectrum allocations to bring 600 megahertz of spectrum to auction. That action will benefit FWA cellular competition even more than cellular service. That’s what incessant lobbying and contributions from the cellular industry buy. But mostly, the government hasn’t been intervening in the broader broadband market.

Roth’s policy position falls flat when applied to the tiny world of BEAD. The BEAD grant program aims to bring broadband to the last 6 to 7 million locations that got left behind by the market. For the most part, the BEAD locations are the most remote or least dense areas where nobody has been willing to make private investments. Congress recognized this when they developed BEAD, and it’s still the market reality. Without a one-time grant subsidy, these locations will likely never see better broadband.

How BEAD grants are awarded is extremely important to the households that will get the broadband, along with the construction companies and vendors that will supply the materials and labor to implement the grants. A lot of rural people put effort into the BEAD process in the hopes of getting a generational broadband upgrade.

But the technology chosen for BEAD has almost zero impact on the bigger U.S. broadband market. It really doesn’t matter to the larger market if the BEAD money all goes for fiber or all goes for satellite. It’s absolutely impossible to make an argument with a straight face that the technologies chosen for BEAD will somehow “warp the progress of innovation” if it’s not done just right.

I know Assistant Secretary Roth is looking for a good argument for awarding all of the locations in a rural county to satellite instead of fiber – but this argument is not it. The truth is that the NTIA changes to BEAD are only about saving money. NTIA could have completed the BEAD grant award on the same timeline by deciding to spend the full $42.5 billion, but they chose not to. They whacked the spending in half and are now searching for a clever way to justify their choices. I can’t think of a more ludicrous argument than one that says that spending more BEAD money on fiber would somehow sabotage the overall pace of broadband technology innovation for the country.

I’m Ready to Call It

I think we can now foresee the demise of traditional telephone service delivered over the PSTN (public switched telephone network). My best guess is the PSTN will ether be dead or dying by the end of 2030. This doesn’t mean the death of telephone voice service, but the end of the regulated service that has been offered by telephone companies. Any voice products that remain will be delivered using VoIP.

The death of the PSTN is being fostered by the FCC, which has made it much easier for telephone companies to tear down or decommission copper telephone networks. The FCC began the process by providing a two-year moratorium on notifications for taking down copper in July and followed that up more recently with a formal docket to make the rules permanent.

Eliminating copper lines is not the same as eliminating the PSTN. I expect the FCC will formally announce rules to end the PSTN soon. But even if the FCC doesn’t take specific action, I expect the big telcos to start dismantling the PSTN in pieces on their own.

The PSTN consists of a private network owned collectively by telephone companies. The PSTN is a series of regional networks that surround a large tandem switch that connects to the telcos and CLECs in the region. The connections between each voice provider and the tandem are called trunks. These are transport routes, many still using the old TDM technology based on T1s, to deliver the traffic. Local voice providers can also have direct trunks to other local voice providers in the area, to the largest long-distance carriers, or to the large cellular carriers.

The PSTN is also the mechanism used to route calls between a local voice provider and the many other carriers in the country. There is a complex set of routing tables that instruct tandem switches how to route calls to reach every registered telephone number in the system. The PSTN is also the starting point for routing other kinds of calls, like international long distance and 800 numbers.

This may sound too complex to break apart, but the biggest telcos have been talking about this for over twenty years. They do not want to be responsible for taking care of the local PSTN arrangements, which costs them money and causes a lot of maintenance. I remember sitting in meetings twenty years ago that discussed ways that the regional tandem switching network could be deactivated over time. There was a lot of investigation done on the topic ten years ago at the FCC, but that effort fizzled out somehow.

The impetus to dismantle the PSTN was always driven by money. The big long-distance carriers were paying huge amounts in access charges to get ‘access’ to the local networks of the many voice providers in the country. The FCC took an axe to many of those fees, and after the magnitude of spending on access decreased, I think the focus on finishing the process died.

The largest telcos like AT&T have always envisioned a much-simplified replacement for the PSTN. Twenty years ago, AT&T talked about a vision where it would replace hundreds of tandem switches nationwide with perhaps two for the whole country. Every carrier that used one of its tandems would be responsible for buying transport to reach one of the big new switches. We can’t ever get rid of the function of routing calls, but this vision would shift most of the cost of the PSTN function away from the big telcos onto each company that originates or terminates voice calls. Under the AT&T vision, the PSTN would be greatly simplified by greatly decreasing the number of locations where calls are exchanged.

There is nothing stopping the big telcos from doing this, other than having a method in place to make sure that calls continue to route. The big carriers are feeling emboldened by the current FCC to wash away old systems, and I think they are now ready to finally tackle this.

Missed by BEAD

An article from the Advanced Communications Law and Policy Institute at the New York Law School claims that over 1 million locations were missed by the BEAD grants. They identified these as locations that are still shown as unserved and underserved on the FCC broadband maps, but which did not make it into the BEAD program.

ACLP also identified two other sources of locations that will likely not get broadband. They predict some BEAD defaults since a number of small and untested ISPs won sizable BEAD grants. They also believe there will continue to be defaults in other grant programs.

ACLP recommends that up to half of the $20 billion+ that will not be spent on BEAD grant be deposited into a BEAD Reserve Fund to be used to cover the shortfalls.

It’s a sensible idea, but unlikely to gain any momentum. It seems clear that NTIA wants to take credit for solving the rural broadband gap while also returning $20 billion to the U.S. Treasury. I can’t think of any mechanism that would allow NTIA to keep unspent monies alive once BEAD grants are awarded and NTIA makes a final announcement on non-deployment funds. The general consensus I’m hearing is that NTIA will award little or nothing to non-deployment funds.

I think ACLP is missing the bigger picture, and I think there are many millions more locations that should have rightfully been included in BEAD.

ACLP’s math starts with the assumption that the speeds reported to the FCC in the broadband maps are right. Anybody who has worked at a local level knows this is often not the case. There are a lot of ISPs that claim a speed of exactly 100/20 Mbps in the FCC maps, and I believe that millions of these locations have been falsely excluded from BEAD.

Each State had a BEAD map challenge that was supposed to result in an accurate map, but that process was largely a total bust. The map challenge rules made it much easier to exclude locations from the preliminary BEAD maps than add locations. The process of proving an ISP was overstating speed capabilities in the FCC maps was nearly impossible to comply with.

Additionally, NTIA declared that licensed fixed wireless was to be treated as served as long as speeds were reported at 100/20 Mbps. In many counties I worked with for the map challenges, it became obvious that reporting by some WISPs was a joke. I remember one WISP that drew an eleven-mile radius circle around every tower and claimed the ability to serve every place in that circle. Numerous WISPs used seven- and nine-mile circles and also claimed full coverage. The irony of the NTIA ruling was that the only requirement to block off big areas from BEAD was adding CBRS spectrum to the spectrum mix. Many WISPs tell me that CBRS is an unremarkable spectrum due to the small channel sizes.

The other big category of locations that could have been covered by BEAD was low-income MDUs. The BEAD legislation suggested that States attack this issue using non-deployment funds. The number of such locations is hard to identify because many MDUs show as served in the FCC map since there is fiber nearby. But an MDU is not served until somebody is willing to invest in the inside wiring needed to bring better broadband to residents.

My guess is that the number of locations missed by BEAD is likely 6 to 7 million, much higher than the number suggested by ACLP. I have no analytical basis for that guess other than I seem to find examples of places missed by BEAD in every community I dig deeply into.

At some point, this will all come clear as folks without good broadband continue to complain to their elected officials. RDOF was supposed to fix the digital divide. BEAD was supposed to solve it. Maybe the next time will be the charm, although I’m not taking any bets on it.

Technology Neutral

I cringe every time I see the term “technology neutral”. Over the last few years, NTIA has morphed the phrase into a euphemism to mean we should favor the cheapest technology over the best technology.

And it clearly is a euphemism meant to disguise the true nature of the broadband policy discussion from those not involved in the topic every day. Governments have gotten so good at developing such phrases that the euphemisms replace the right language and become common usage. We routinely hear phrases like revenue enhancement instead of tax increase, or negative growth instead of losses without fully realizing what is not being said.

The phrase technology neutral didn’t start as a euphemism. It comes from a policy paper issued during the Clinton Administration, “Framework for Global Electronic Commerce“, which used the term “technology-neutral” to warn that governments shouldn’t get involved in trying to steer the technology direction for the budding Internet industry. The Administration at the time believed that a hands-off market approach would best allow the Internet to develop. It turns out they were right.

It seems pretty clear that the term was tossed into the IIJA legislation as a bone for WISPs. They badly wanted to participate in BEAD and used the term technology-neutral to plant the idea that all technologies that could deliver speeds of 100/20 Mbps were all equivalent. Until Tarana came out with much faster radios, the fixed wireless technology at the time didn’t deserve to be considered for long-term grants – and sure enough, five years later, the older radios have already joined DSL and other older technologies in the obsolete technology trash bin.

I’ve been searching for a good analogy for the current use of technology neutral and think I have one. Consider a tiny village that is not connected to the power grid. There is a wide range of technology solutions for providing homes with heat and light. The village could be given a self-sufficient solar power farm. They could be connected to a nuclear power plant. They could be given an obsolete coal-powered plant being decommissioned from somewhere else. Each home could be given a gas generator. They could be provided with the low-tech option of fireplaces and axes to chop firewood.

The various technology choices are clearly different in terms of cost and effectiveness. The NTIA technology neutral position would say that all of these options are acceptable, as long as they deliver heat and light to the homes today and also will deliver heat and light in the foreseeable future. If there were a government grant to bring heat and light to the towns that operated under the NTIA rules, the decision would be made on cost, since all of the solutions are considered to be technology-neutral. I don’t think the rural residents would be thrilled with their government-subsidized axes.

Don’t mistake this as a rant for building fiber instead of other broadband technologies. In the example, it would be extreme to build the most expensive solutions, like a nuclear power plant. I don’t know anybody who supports the idea of spending huge amounts of money to bring broadband to a small number of places. Going back to the village in my example, there are a lot of options between a nuclear power plant and fireplaces.

The real problem I have with the term technology neutral is that it says that all broadband technologies are the same, and they clearly are not. Starlink is not equivalent to fiber for a small community. For one thing, fiber can be used for a lot of other purposes that can benefit the community beyond bringing home broadband. Using a euphemism is a way to disguise the real discussion that should be held at State Broadband Offices – what can be afforded for the funding that is available. I think States were mostly doing that, but the shift to the lowest-cost solution ended all logical deliberation.

As we saw in the first BEAD award from Louisiana, which was done under the original BEAD rules, the State still awarded satellite technology for some locations, because that was the most sensible solution for those places. But when the rules got reshuffled to impose technology neutrality, deliberate decisions of the broadband office were replaced with a simple cost comparison.

Cox Wins DMCA Case

There was another interesting court decision involving Cox. The U.S. Court of Appeals for the Ninth Circuit ruled that ISPs can’t be served subpoenas related to some portions of the Digital Millennium Copyright Act (DMCA).

The lawsuit arose from a subpoena issued to Cox by Capstone Studios concerning the movie Fall. Capstone had identified 29 Cox subscribers that it said had pirated a copy of the movie using BitTorrent. Cox notified its customers and asked them if they wanted to respond to the court, and one subscriber did. The subscriber claimed that they had an open WiFi connection and that somebody else must have downloaded the movie using their bandwidth. The U.S. District Court of Hawaii ruled that Cox qualified for the conduit safe harbor since Cox only provided the Internet connection and had no role or obligations in the transaction of downloading the movie.

The DMCA rules are key to protecting Internet service providers from being prosecuted for the information that passes through their platform at the request of users. The four safe harbors include:

  • The conduit safe harbor is the one evoked by the Court for Cox. This says that online service providers have no obligations under DMCA if they only temporarily store user data for the purpose of transmission. ISPs like Cox don’t look to see what customers are transmitting on their networks.
  • The system caching safe harbor says service providers have no liability if they cache data at the request of others to speed access to users or reduce traffic on the Internet.
  • The information safe harbor protects service providers if they store information on their platforms at the direction of users.
  • The information location tools safe harbor protects service providers from liability if their site includes search engines, directories, or hyperlinks that might send users to infringing materials.

Capstone appealed the ruling to the Appeals Court. The Ninth District agreed with the lower court and ruled that ISPs are only conduits for the data sent over their networks and that Cox hadn’t taken any actions that demonstrated that it had a role in pirating the movie. The Ninth Circuit went further than the District Court and said that the original subpoena was invalid since Cox only acted as an ISP and was not a party to the action of pirating the movie.

This is good news for ISPs since they clearly have no idea how customers are using their broadband connection. The Internet would come to a screeching halt if ISPs were held liable for actions taken by subscribers. Most ISPs have terms of service that allow them to disconnect customers who engage in bad behavior on the Internet, but ISPs only hear about that behavior from third parties.

This case is tangentially related to another case involving Cox that was recently accepted by the U.S. Supreme Court. That case involves a longstanding dispute between Cox and music labels. The case originated with a 2019 decision by a Virginia Court that found Cox liable for both contributory and vicarious copyright infringement for actions taken by its customers and awarded the record companies an astounding $1 billion in damages.

Even after an Appeals Court reversed the fine, Cox is still in violation of contributory damages over actions taken by its customers. The record labels want Cox to permanently disconnect any customer who engages in repeated copyright infringement. If that ruling holds, it would turn ISPs into Internet policemen who must monitor and punish customers who engage in copyright infringement for music, movies, games, books, and sports events.

Big ISPs and Speeds

I was recently reminded in a conversation with a client how cable company executives used to tell the public that they didn’t need faster broadband speeds, and what the cable companies offered was fine. Looking through my archives, I found the following statements from 2013, where cable companies were responding to the first Google Fiber offerings of symmetrical gigabit broadband.

In 2013, Time Warner Cable CFO Irene Esteves announced that the company didn’t see the need to deliver Google Fiber speeds to consumers. Comcast Executive Vice President David L. Cohen was quoted as saying that gigabit speeds were pointless due to limitations on the data speeds that could be delivered from websites and the lack of capability of home WiFi routers. Michael Powell, the CEO of the National Cable & Telecommunications Association, characterized gigabit speeds as an “irrelevant exercise in bragging rights”.

The criticisms had some merit at the time. There was no web traffic that operated at speeds even close to a gigabit. Off-the-shelf WiFi routers couldn’t handle anything close to gigabit speeds. But the public didn’t care because performance on fiber was perceived as being significantly better than what was delivered by cable companies, and customers flocked to Google Fiber in the markets where it was introduced. Interestingly, Time Warner obviously thought the Google Fiber threat was real, because the company quickly built fiber-to-the-premise to compete against Google in North Carolina.

There were some customers who benefited from gigabit speeds. I recall talking to a doctor who subscribed to gigabit speeds when it became available from a municipal ISP. This hospital also had gigabit broadband, and the doctor was able to download large MRI files at home in a reasonable amount of time once he had gigabit fiber. I also talked to a photographer who used a different municipal ISP who told me that gigabit speeds made it possible for the first time to upload photography and video libraries to clients without having to wait for hours for the uploads to complete.

The next time that cable companies told the public they didn’t need faster speeds was during the pandemic, when it became clear that cable company upload speeds of 10 Mbps were not able to handle multiple people working and schooling at home at the same time. Every big cable company defended its networks. Charter CEO Tom Rutledge said at the time that Charter’s network was adequate and justified that by pointing out that the majority of customer data usage was downstream. But Charter and other cable companies tweaked their networks during the pandemic to improve upload speeds to 15-20 Mbps. Still today, there are numerous cable networks that have not yet implemented any upgrades to bring significant improvement to upload speeds.

Many ISPs subtly tell their customers they don’t need fast broadband through their pricing. I find small ISPs around the country that still charge extremely high prices for anything faster than their basic broadband product.

This frankly mystifies me. I’ve always guessed that this kind of pricing is for two reasons. First, I think some small ISPs fear that customers who buy faster speeds will somehow cost the ISP a lot more money. But that doesn’t seem to be the case. I recall an Ookla article last year that said that, in some markets, the biggest data users were the customers buying the least expensive broadband package. I’ve had numerous ISPs tell me that their gigabit customers don’t use more broadband than their 100 Mbps customers.

The only other reason for high prices for faster speeds is that they are trying to create the idea that fast speeds are a super-premium product. But I think these ISPs are losing out on a lot of revenue. ISPs who space prices between speed tiers of $15 to $20 see that a lot of customers who are willing to upgrade to faster speeds when it doesn’t cost a lot more per month. Most customers are leery about paying $50 or more per month for a faster speed.

AT&T Raises Rates

AT&T announced it will raise broadband rates as of December 1 by $5 per month. This is the second year in a row that the company has raised rates by that amount. The fact that the company is raising rates in today’s environment is an interesting choice. I suspect the rate increase says several things about AT&T. The increase tells me that the company is meeting its fiber penetration goals and doesn’t think a rate increase will hurt its market share. It also speaks to a belief that customers perceive fiber as the superior technology that people are willing to pay for.

This will take AT&T fiber broadband prices to $69 for 300 Mbps, $80 for 500 Mbps, $95 for 1 Gbps, and $160 for 2 Gbps. Before the two rate increases, AT&T was priced noticeably lower than its cable competitors, but that is no longer the case.

The rate increase will apply to existing customers, although AT&T is not raising the rate for it’s low-income plan. In a move that always mystifies long-time customers, AT&T is still offering aggressively low rates for new customers while asking for more revenue from long-time customers. While writing this blog, I saw the AT&T website is offering introductory rates of 300 Mbps for $42 and 1 Gbps for $50. AT&T is also offering a low rate for its FWA cellular broadband of $47 per month.

AT&T is giving customers the typical story that the rate increases are needed to ensure that customers will receive a high level of service. But the company is not mentioning to its customers that it had a net income of $4.9 billion and free cash flow generated of $4.4 billion in the second quarter of this year.

This has to be good news for the big cable companies that compete against AT&T fiber. If the cable companies decide not to raise rates now, they can advertise against AT&T for doing so. However, this could also give cable companies the cover to raise rates again, and I’m sure this announcement is being discussed in cable Board rooms.

What I find most interesting about the rate increases is that the big cable companies have spent a lot of advertising dollars talking about lower rates. Cable companies are in a panic about losing customers to both fiber and FWA and have mostly fought back with lower introductory rates and special promotions.

Charter had a rate increase this year and raised broadband rates by $2 per month, starting with the July 2025 billing cycle. That’s the lowest rate increase from the company in years and follows a $3 rate increase in the summer of 2024. Charter has been pushing a two- or three-year price lock where rates are guaranteed without customers having to sign a contract.

Comcast has not been so cautious with rate increases and announced an across-the-board 5% rate increase for broadband at the end of 2024. It will be interesting to see what they will do this year. But Comcast has also been pushing low-rate deals, including a promotion in April that gave new customers a 5-year price lock.

These annual rate increases always prompt small ISPs to ask if they should raise rates. The majority of small ISPs do not raise rates every year. I know a number of cooperatives that typically only raise rates every three to five years. It’s ironic that, on the whole, these rate increases will mean that urban broadband rates will become significantly more expensive than rural rates, mostly due to urban rates getting increased every year. There are exceptions, and some rural companies have high rates, but most do not.

Where is Congress?

One of the things that mystifies me this year is how many federal elected officials have disappeared in terms of supporting broadband. For example, there has been little talk of elected officials openly trying to stop NTIA from gutting the BEAD grant program. There’s no news about trying to force NTIA to go ahead and award grants from the Digital Equity Act. This may be happening behind the scenes, but there’s no big public news about supporting better broadband.

This is not intended as a political blog. I am truly puzzled by this big change. I fully understand that politics in DC is a mess right now. But the sudden indifference to broadband is a huge shift from just the recent past. Broadband has always been one of the few topics that has had bipartisan support from rural legislators, because they all knew that this was important to their constituents. Over the last five or ten years, I’ve heard from dozens of County governments who have said that the lack of good broadband was the number one issue for their constituents.

That message has always carried upward to federal legislators, particularly in the House of Representatives. Over the years, I’ve talked to a number of House members, or their staffs, who wanted to know more about the broadband market in their district. I can’t think of an ISP preparing to ask for a broadband grant that was unable to get a letter of support from their House member. And House members always turn up for ribbon cuttings for the launch of a new broadband network. Getting better broadband in rural communities has always been big local news, and elected officials have always participated in trying to get better broadband and celebrating it when it shows up.

The most visible political support for better broadband has come at the County level, and I know many County governments are confused and dismayed by the sudden retraction of the BEAD grant program. A lot of County Boards put a lot of effort into the BEAD process, because BEAD grant scoring rules in a lot of states rewarded ISPs that got real commitments from local politicians instead of the more common generic letter of support. County Boards were led to believe that they had some say in choosing the ISPs they wanted, since BEAD scoring gave extra points for such effort. A lot of County Boards even made tentative grant awards as matching for BEAD using local or ARPA funds, because that supported the local ISP they favored. Unfortunately, the sudden push to award BEAD to the lowest bidder means a lot of those local grants will go unused, and the ARPA funds will evaporate.

One of the most perplexing aspects of cutting BEAD funding is that the federal government is making a massive push for AI. Bringing AI into everyday life can only happen if everybody has access to good broadband. I’m truly perplexed how the government and the tech companies that are supporting them are for AI but not for spending the BEAD funding that is already in the pipeline.

A good compromise to support AI would be to let States have some or all of the non-deployment funds. It looks like that is going to be roughly half of the $45 billion allocated to BEAD. States could do a lot with that money if they were free to use it in ways they choose. It might make sense at this point to redistribute the non-deployment funds – the allocation of BEAD funds to States was based on faulty FCC maps and clearly gave some States too much money, and others not enough.

Lack of any vocal bipartisanship for broadband probably also doesn’t bode well for other needed legislation, like reforming the Universal Fund. I’m not hopeful that much will change with the BEAD funding or USF reform unless federal politicians speak up and remind NTIA and the administration that good broadband is essential for the American economy and a future that includes AI.

Simplifying the Broadband Labels

The FCC has issued a Notice of Proposed Rulemaking that proposes to simplify the rules for broadband labels. This effort demonstrates the need to simplify regulations while also highlighting the absurdity of many regulations.

The Rulemaking is specifically recommending to eliminate the following requirements:

  • Read the label to consumers over the phone
  • Itemize state and local pass-through fees that vary depending on the location of the consumer
  • Provide information about the now-concluded Affordable Connectivity Program
  • Display labels in customer account portals
  • Make labels available in machine-readable format
  • Archive labels for at least two years after a service is no longer offered to new customers

The Rulemaking also seeks comments on several issues:

  • Whether to eliminate the multilingual display requirement.
  • Are there other requirements that are unduly burdensome and provide minimal benefit to consumers.
  • Removing the label template from the CFR.

The fact that the FCC is proposing these changes highlights the absurdity of some regulations. The original label rules were too specific and burdensome. For example, requiring an ISP to somehow show the right local taxes for each customer based on address is absurd. Many taxes change regularly and it was never practical for a company operating in multiple states to do this. The rule that a company had to read a label over the phone was ridiculous. Go try to do that – it takes a long time to read through a single label, and much of the language ISPs put on labels is written in legalese and not easy for consumers to understand.

The real issue that is not being addressed is that the labels are not meeting the original intended purpose. The main reason the label rules were created was to provide consumers with an easy way to comparison-shop between different ISPs in a market. The labels have failed to meet the original goal.

Many ISPs make labels hard to find on a website. When you find the labels, a consumer often has to provide a specific street address, which many people are not willing to do to avoid being pestered by marketing material. It’s largely impossible to compare ISP speeds and performance because ISPs are allowed to claim marketing ‘up to’ speeds on the labels, which often have no similarity to the actual speeds that can be delivered.

The labels are also supposed to explain the technology used in plain English. I defy anybody who is not a technical industry insider to understand this portion of the labels. I’ve read some that were so nebulous that I was not sure what technology was being deployed.

The only good feature of the labels that I can see is that ISPs have to disclose the list prices that customers are charged at the end of any special or promotional pricing.

It also doesn’t look like the FCC is monitoring to see that ISPs have labels. I’ve found a lot of smaller ISPs that either don’t have labels or have hidden them so well they can’t be found. The bottom line of this rulemaking is that the FCC wants to make the labels a little easier for ISPs, but not any more usable for consumers.

Telco Rules for Subpoenas

Senator Marsha Blackburn (R-Tenn.) recently wrote to the CEOs of AT&T, T-Mobile, and Verizon to ask why they had complied with subpoenas seeking phone toll records from her and other Republican senators. Senator Blackburn said the FBI had gotten call metadata for the period of Jan. 4–7, 2021.

For those not familiar with the term, metadata for telephone calls are records that a call was made, which includes the called and calling party and the time and duration of the call. Telephone companies don’t listen to or record the content of voice calls.

Today’s blog looks at telephone company rules for retaining data and responding to subpoenas.

Record Retention. Federal law and FCC rules require telephone companies to retain call records for at least 180 days. Many telcos hold call metadata longer.

There are no specific rules for the retention of text messages, and each carrier has a different policy. For example, AT&T says it doesn’t store the content of text messages. Verizon says it keeps the content of texts for 3-5 days. Most cell carriers keep the metadata for texts for longer periods, like is done with voice calls.

When you hear about court cases that use text messages as evidence, or stories in the press about text message content, the content of the text messages comes from the cellphones of one of the parties to a text. Your phone will typically keep the details of your text messages for years unless you delete them.

ISPs in the U.S. are not required to retain customer browsing data or emails. Browsing data shows the websites a user has visited and the time and duration of a connection. ISPs typically don’t try to retain encrypted web searches. Most ISPs retain browsing history or email details for a limited time, often up to several months. If an ISP still has the data, it’s likely that they would respond to a valid subpoena and produce it. Some ISPs permanently keep records of when a customer is online or offline and the amount of data consumed.

ISPs and telcos typically retain other customer data like billing records or trouble logs, often for many years.

Responding to Subpoenas. Federal and state laws require telephone companies to provide call records to law enforcement or other government entities when requested by a valid subpoena, court order, or search warrant. In the case of Senator Blackburn, AT&T, T-Mobile, and Verizon were required by law, and by longstanding common practice, to comply with a subpoena from the FBI.

Carriers are allowed to challenge a subpoena. For example, a carrier might refuse a subpoena that is not properly addressed or that lacks the proper signatures. A carrier might refuse to comply with a subpoena that was issued in a State that has no jurisdiction over where the phone records are stored. Carriers might refuse to comply if satisfying the subpoena is too burdensome or costly. But carriers respond to most subpoenas.

Wiretaps. Wiretaps occur when law enforcement wants to either listen to live voice calls or intercept broadband usage and must be obtained through a subpoena. In some cases, this is done using federal CALEA law, but can also come from a direct subpoena or court order. Most typically, law enforcement will ask to have call or data streams forwarded to them, and the ISP doesn’t do the monitoring.