Category Archives: Regulation – What is it Good For?

Why Do We Give Grants to Huge ISPs?

The blog title is a rhetorical question because we all know why we give federal money to big ISPs – they are powerful companies that have a lot of lobbyists and that make a lot of contributions to politicians. But for some reason, the rest of us don’t talk enough about why giving money to the big ISPs is bad policy.

I could write a week’s worth of blogs detailing reasons why big ISPs don’t deserve grant funding. The public dislikes big ISPs and has rated them for two decades as having the worst customer service among all corporations and entities, disliked even more than insurance companies and the IRS. The public hates talking to big ISPs, because every call turns into a sales pitch to spend more money.

The big ISPs routinely deceive their customers. They routinely advertise special prices and then proceed to bill consumers more than what was promised. They have hidden fees and try to disguise their rates as taxes and fees. The big telcos unashamedly bill rural customers big fees for decrepit DSL that barely works. The telcos have known for over a decade that they can’t deliver what they are peddling.

Cable companies come across as better than the telcos only because their broadband technology is faster. But in every city, there are some neighborhoods where speeds are far slower than advertised speeds – neighborhoods where longstanding network problems never get fixed. I hear stories all of the time about repeated slowdowns and outages. About 30% of the folks we’ve surveyed during the pandemic have said that they couldn’t work from home due to problems with cable company upload speeds.

And then there are the big reasons. The big telcos created the rural broadband crisis. They made a decision decades ago to walk away from rural copper. They quietly cut back on all upgrades and maintenance and eliminated tens of thousands of rural technicians, meaning that customers routinely wait a week or longer to even see a technician.

What’s worse, the big telcos didn’t walk away from rural America honestly. They kept talking about how they could provide good service, to the point that the FCC awarded them $11 billion in the CAF II program to improve rural DSL – we paid them for what they should have routinely done by reinvesting the billions they have collected from rural customers. But rather than use the CAF II money to improve rural DSL, most of the money got pocketed to the benefit of stockholders.

While I think the decision to walk away from rural broadband was made in the boardroom – the worst consequences of the decision were implemented locally. That’s how giant companies work and is the primary reason we shouldn’t give money to big ISPs. Upper management puts pressure on regional vice presidents to improve the bottom line, and it’s the regional managers who quietly cut back on technicians and equipment. Rural broadband didn’t die from one big sweeping decision – it was murdered by thousands of small cutbacks by regional bureaucrats trying to earn better bonuses. I’ve talked to many rural technicians who tell me that their companies have taken away every tool they have for helping customers.

What does this all boil down to? If we give money to the big ISPs to build rural networks, they are going to pocket some of the money like they did with CAF II. But even if they use grant money to build decent rural networks, it’s hard to imagine them being good stewards of those networks. The networks will not get the needed future upgrades. There will never be enough technicians. And every year the problems will get a little worse until we look up in twenty years and see rural fiber networks owned by the big ISPs that are barely limping along. Meanwhile, we’ll see networks operated by cooperatives, small telcos, and municipalities that work perfectly, that offer good customer service, and that have responsive repair and maintenance.

I have a hard time thinking that there is a single policy person or politician in the country who honestly thinks that big ISPs will take care of rural America over time. They’ll take federal money and build the least they can get away with. Then, within only a few years they’ll start to nickel and dime the rural properties as they have always done.

I have to laugh when I hear somebody comparing current rural broadband grant programs to our effort a century ago for rural electrification. That electrification money went mostly to cooperatives and not to the big commercial corporations. We’ve lost track of that important fact when we use the electrification analogy. The government made the right decision by lending money to citzens to solve the electricity gap and didn’t give money to the big commercial electric companies that had already shunned rural America.

The main reason we shouldn’t give grants to big ISPs is that solving the rural broadband gap is too important to entrust to companies that we know will do a lousy job. There is nobody who thinks that the big telcos or cable companies will do the right thing in rural America over the long run if we’re dumb enough to fund them.

Mandated Low-Income Prices

ISPs are vehemently opposed to a law recently passed in New York that requires ISPs to offer low-income broadband for prices of $15 to $20. The is a dreadful law for several reasons which I’ll discuss below. But before that, I have to first make fun of the main argument the ISPs are using to fight against the law.

An array of ISP trade associations opposing the law include the New York State Telecommunications Association, CTIA, ACA Connects, USTelecom, NTCA, and SBCA. It seems that the best argument these trade associations can muster for why this law should be invalid is that the State doesn’t have the right to impose this law because only the FCC has rate authority over broadband. The problem with that argument is that the FCC doesn’t have rate authority – or regulatory authority of almost any kind over broadband – due to heavy lobbying by these same trade associations that was able to kill Title II regulation. The group is pointing to a ruling made by FCC Commissioner Pai that says that States have no authority over broadband rates – made at the same time that Chairman Pai killed FCC authority to regulate rates. Chairman Pai’s position was that nobody should have rate authority over ISPs – which means nothing after the FCC walked away and created a regulatory vacuum. States are generally able to fill a vacuum, much like California was able to implement net neutrality after the FCC killed its own regulations on the issue.

There is a long list of reasons why ISPs hate this particular regulation. The first reason is practical. Ignore for a minute that somebody like Comcast might be able to afford this and consider instead a smaller independent fiber overbuilder. It costs on average around $1,000 to install a new customer on fiber just to build the fiber drop and install the needed electronics. It would take 50 months at a $20 monthly fee for an ISP to recover just the cost of the installation – and that still hasn’t paid a penny towards the cost of operating the business. If this law would require a small ISP to install 1,000 subsidized customers (not a big number), the ISP would have to spend $1 million (that it probably doesn’t have) and then be repaid at $20,000 per month. Anybody that knows the small ISP world knows that this scenario is untenable, and the law could sink a fledgling ISP and put them out of business. Small ISPs would have no choice but to ignore this law – the penalties for non-compliance would likely be less costly than the cost of compliance.

Localities have complained about broadband redlining for years. If New York makes ISPs wholly shoulder the cost burden to make broadband affordable, then the state will never see any more broadband investment in poor neighborhoods. ISPs will never come to areas with a substantial percentage of low-income households and the ISPs who are already in such neighborhoods will start figuring out ways to walk away from these neighborhoods. Put this law into place and in twenty years there will be true broadband deserts across New York with large neighborhoods that have no broadband options other than smartphones. Whoever wrote this law didn’t spend much energy thinking about the practical consequences.

The ISPs have an even larger concern with this law. If the State can set a rate for low-income broadband, then there is likely no reason that the State can’t also put a cap on broadband bills. What’s to stop the state from declaring that gigabit broadband can’t cost more than $50?

Even should a State decide to tackle the issue of rate regulation, it ought to do so in a deliberate and reasonable manner by weighing all sides of the rate regulation issue. Legislators are the worst possible group of folks to create this kind of regulation because they will always take the populist view without worrying about the consequences. If New York starts to regulate rates through ad hoc regulation as suggested by this bill, my advice to ISPs would be to never spend another penny in the state and take investments elsewhere. I’m trying to imagine what would happen in New York if Verizon and Charter decided to not invest another dollar. In ten years, the State might have the worst broadband networks in the country.

There is nothing good about this law because it piles the full burden of helping low-income homes on ISPs. Everybody in the industry, including the ISPs understand that the country would be better off if everybody is connected to the Internet. But digital inclusion efforts are going nowhere if ISPs are expected to solely fix the problem. The right solution will require some give by ISPs along with some subsidies from the government. There has to be a middle ground that makes sense, and we’re not going to find that middle ground through legislation like this.

Interim Treasury Rules Part 3

There is one interesting sentence in the Treasury guidance rules describing how to use broadband funding from the $350 million aimed at local governments in the American Rescue Plan Act.

Treasury also encourages recipients to prioritize support for broadband networks owned, operated by, or affiliated with local governments, non-profits, and co-operatives—providers with less pressure to turn profits and with a commitment to serving entire communities.

 Note that the key verb in that statement is ‘encourages’, meaning that the statement is not actionable and doesn’t commit that funding is to used in this manner. But this is the first time that such language has ever been incorporated in anything federal related to broadband. In the past, the language was just the opposite. Past federal grants have always been aimed at existing carriers and they always threw in a footnote mentioning that the money could also be used by entities like municipalities.

This language has to be ultimately coming from the White House – I can’t think of any other reason why it’s in the document. The new administration has said that it’s in favor of using every tool in the toolbox to get broadband everywhere, including enabling municipalities to find local broadband solutions.

In 2015, the FCC under Tom Wheeler tried to expand the ability of municipalities to provide broadband. The FCC issued an order that overturned state laws in Tennessee and North Carolina that prohibited the municipal ISPs in Chattanooga, TN, and Wilson, NC from expanding broadband outside city boundaries. The FCC was testing the waters on its authority to overturn state restrictions on municipal broadband. In a rejection of the FCC’s authority to preempt states, the FCC order was overturned by the Sixth Court of Appeals in August 2016.

The FCC is in an even weaker position today to try something similar since the Ajit Pai FCC eliminated Title II regulation of broadband. An FCC that doesn’t directly regulate broadband is in no position to challenge state broadband rules. Even if the current FCC was to restore Title II authority or something similar, it’s doubtful that the agency can challenge state laws based upon the 2016 ruling.

This means that the only challenge to state restrictions on broadband will have to come from Congress. There has been talk of adding this provision to several of the bills running through the current Congress. But Congressional action on the issue would set off a set of court challenges, which are almost automatic anytime that federal government tries to usurp state laws of any kind.

I hope that any cities or counties reading the Treasury guidelines don’t think that the Treasury has granted local governments the ability to offer retail broadband. The Treasury statement is not much more than wishful thinking for municipalities in states that don’t allow municipal broadband. A municipality that is in a state that restricts municipal participation in broadband must follow the state laws when using this latest federal funding. A city can’t directly build fiber infrastructure if the state doesn’t allow it; a municipality can’t offer broadband services where that’s prohibited.

I think municipalities probably still appreciate this gesture from Treasury because it signals a change in regulatory philosophy at the federal level. But neither the White House nor any of its agencies currently have the power to grant the right to municipalities to offer broadband. It’s an interesting sentiment in this case, but not much more.

Interim Treasury Rules Part 2

On Wednesday I published a blog that discussed my perceptions of the Treasury’s Interim Final Rules for using the $350 billion of funding provided to localities from the American Rescue Plan Act. Today I want to emphasize that blog was based strictly upon the suggested rules from Treasury. It’s important to realize those rules are interim only, and any changes to the rules could have a drastic impact on how the funding can be used for broadband.

Note that Treasury asked five questions related to broadband. These are important enough that I list them:

Question 22: What are the advantages and disadvantages of setting minimum symmetrical download and upload speeds of 100 Mbps? What other minimum standards would be appropriate and why?

Question 23: Would setting such a minimum be impractical for particular types of projects? If so, where and on what basis should those projects be identified? How could such a standard be set while also taking into account the practicality of using this standard in particular types of projects? In addition to topography, geography, and financial factors, what other constraints, if any, are relevant to considering whether an investment is impracticable?

Question 24: What are the advantages and disadvantages of setting a minimum level of service at 100 Mbps download and 20 Mbps upload in projects where it is impracticable to set minimum symmetrical download and upload speeds of 100 Mbps? What are the advantages and disadvantages of setting a scalability requirement in these cases? What other minimum standards would be appropriate and why?

Question 25: What are the advantages and disadvantages of focusing these investments on those without access to a wireline connection that reliably delivers 25 Mbps download by 3 Mbps upload? Would another threshold be appropriate and why?

Question 26: What are the advantages and disadvantages of setting any particular threshold for identifying unserved or underserved areas, minimum speed standards or scalability minimum? Are there other standards that should be set (e.g., latency)? If so, why and how? How can such threshold, standards, or minimum be set in a way that balances the public’s interest in making sure that reliable broadband services meeting the daily needs of all Americans are available throughout the country with the providing recipients flexibility to meet the varied needs of their communities?

I can’t stress enough that having somebody other than the FCC asking these questions is really unusual. While Treasury feels they need to understand these issues better to establish final funding rules, these are largely policy questions. As such, the responses are not easy to describe to Treasury. If the FCC asked these questions I might respond – but in doing so I could take shortcuts in my responses since I could assume that there are many things that the FCC already understands about broadband.

But I couldn’t make that assumption in responding to Treasury. How does one go about explaining the long history and disaster that is the FCC 477 mapping data? The nuances of the FCC data are a major factor in discussing anything related to 25/3 Mbps. How does one convince Treasury the extent to which many ISPs have seemingly fabricated the 477 reporting?

Even more fundamentally, how does one talk about what it means to reliably deliver 25/3 Mbps speeds? Would they believe you if you say that no DSL connection has reliable speeds and that speeds can easily vary by 100% or even far more during an average day? How do you explain how hard it is to measure speeds in the first place – something that’s never been grasped by the FCC. The questions assume that the speed of a product to a single customer can be cleanly defined – and the real-world broadband speeds don’t work like that.

I’m really perplexed by question 23 that asks to describe all of the issues that might define practicality for a given business plan? I write 200-page reports that try to answer that question for clients.

I have to admit that it makes me nervous to have a federal agency that has nothing to do with broadband ask these kinds of questions. Those of us who might be able to answer these questions by spending a day at a whiteboard will not have the time or ability to fully answer in writing the complex questions that Treasury has asked. The answers they are going to get are from the various trade associations that are all going to be heavily biased with a particular industry point of view. After hearing from the cable association, the fixed wireless association, the fiber association, and the big and the small telco associations I can’t imagine how Treasury will reconcile the differences from each of these responses. I can read something from a trade association and quickly tell you what is factual versus pure bosh – but how will Treasury do this?

I have to say that the fact that these questions are still open makes me nervous. Cities, counties, and states are trying to make plans on how to allocate and spend this funding. If this process takes too long, local governments are going to use the money for purposes other than broadband. If the final rules are muddy or too restrictive, localities will also find it easier to pass on using the money for broadband. Even after Treasury gets answers to these questions, I can’t imagine a reasonable way for them to somehow interpret the wide range of responses they’ll get to create a coherent policy – something the FCC has frankly never done well. Ideally, Treasury will adopt what they’ve already written for broadband and be done with it.

Treasury Releases Broadband Grant Rules

Earlier this week the Department of the Treasury released an Interim Final Rule that defines how the $350 billion of pandemic relief funding from the American Rescue Plan Act can be used. The money is being sent to states and localities to use in a wide variety of ways that include broadband.

I must admit that on first reading that I was unhappy with the Treasury ruling. The strictest reading of the rules is that the money is intended to be used in areas that don’t have broadband speeds of at least 25/3 Mbps, which can be updated with technologies that deliver speeds of at least 100/20Mbps, but more preferably 100/100 Mbps. We just went through the RDOF grant that supposedly allocated funds to most places in the country where the FCC thinks speeds are less than 25/3 Mbps. I first envisioned having trouble finding places to use this money.

But I read it a few more times, and my 35 years of reading government regulatory orders kicked in. The more I read this, the more I started seeing some ways that localities can use the money in creative ways. The first thing I noticed after a few re-readings is there is no shall language in the broadband rules. Government lawyers are always careful to use shall for anything that is mandatory and the work ‘shall’ is not included anywhere in the broadband guidelines.

Next, I realized that localities don’t have to ask anybody how to use the funds for broadband. There is no application process for grants – no need to write a grant request to justify how to use the money. There also are no implied penalties for not using the funding in a specific manner. The CARES funding from last year included strongly worded claw-back language that threatened to take back any funding that States didn’t use properly. There is no claw-back or penalties associated with this funding that I can find.

There is also what I would call soft regulatory language – the kind of language that causes just enough ambiguity to indicate that the authors of the language want loopholes. Localities are provided ‘flexibility’ in choosing the parts of the community to serve. While there is an indication that the money can only be used in areas with 25/3 Mbps or slower broadband, that rule is modified to say areas that are “reliably” delivering 25/3 Mbps. There are a whole lot of urban networks that don’t reliably deliver good speeds.

The order goes on to ‘encourage’ behavior by localities. Communities are encouraged to consider broadband affordability. Communities are encouraged to concentrate on last-mile connections. And communities are encouraged to use the funding for projects that are operated by or affiliated with local government, non-profits, and cooperatives.

The big kicker for me is the last paragraph of the broadband discussion the broadband section that “Under sections 602(c)(1)(A) and 603(c)(1)(A), assistance to households facing negative economic impacts due to COVID-19 is also an eligible use, including internet access or digital literacy assistance.” I’ve read this many times and I conclude that this is a second separate use for the funds – the funds can be used to bring broadband to areas that don’t have 25/3 Mbps OR the funds can be used to assist households hurt by the pandemic. I read this as giving full cover to use the funding in cities for broadband for neighborhoods that need help.

I’m not lawyer, and my reading of the language could be wrong, and perhaps the cable company lobbyists think the language is restrictive.   But I’ve been reading regulatory rulings for decades and I just can’t find the kind of language in this ruling that demands using the money in only a subscribed way. Additionally, I keep coming back to the language that sprinkles advice in the ruling to be flexible.

It’s worth noting that this document is not final and could still change. The big ISP lobbyists will be trying to add stronger language to a final order while rural and municipal proponents will want to clarify even more that localities have a lot of options on using the money. It’s going to be an interesting several months while the industry dissects and parses the language in this document. I sure hope my reading is right because I see the flexible ways for communities of all sizes for using this funding to tackle the digital divide.

Those Troublesome FCC Maps

The FCC is in the process of reworking its broadband maps. The task of doing so is complicated and the new maps are likely going to be a big mess at first. In a recent article in Slate, Mike Conlow discusses two of the issues that the FCC will have trouble getting right.

One issue is identifying rural homes and businesses. We know from recent auctions that the FCC assumption on the number of homes in a Census block is often wrong.  It’s hard to count homes without broadband if we don’t know how to count homes in general. The mapping firm CostQuest suggests counting homes using satellite data. But the article shows how hard that can be. For instance, it shows a typical farm complex that has multiple buildings. How does an automated mapping program count the homes in this situation? Mixed among the many farm buildings could be zero homes, one home, or several homes.

If you have ever looked at satellite maps in West Virginia, you see the opposite problem. There are homes under total tree cover that aren’t seen by a satellite. To really complicate matters, there are several million rural vacation homes in the country, many not more than a shack or small cabin, many without power. How is satellite mapping going to distinguish a cabin without power from a home with full-time residents? It’s unlikely that a national attempt to count homes using satellite data is going to get this even close to right – but it means many millions to CostQuest to try.

The second mapping issue comes from ISPs that will have to draw polygons around service areas that have broadband or can get broadband within 10 days of a service request. The article shows a real example where it’s easy to draw a polygon along roads that will leave out homes that are back long lanes or driveways.

When ISPs convert to this new mapping with the polygons, especially if housing data comes from satellite imagery, the resulting maps are going to have a lot of problems. The first iterations of the new maps will differ significantly from today’s mapping and it’s going to be nearly impossible to understand the difference between old and new.

As complicated as these two issues are, they are not the biggest problem with the mapping. The big issue that nobody in Congress or the FCC wants to talk about is that it’s nearly impossible to know the broadband speed delivered to a home. For most broadband technologies, the speed being delivered changes from second to second, and from minute to minute. If you don’t think that’s true, then run a speed test at home a few dozen times today, every few hours. Unless your broadband comes from a stable fiber network, the chances are that you’ll get a wide range of speed test readings. After taking these multiple tests, tell me the broadband speed at your house. If it’s hard to define the speed for a single home, how are we supposed to tackle this in mass?

But let’s just suppose that in some magical way that the FCC could figure out the average speed at a home over time. That still doesn’t help with the FCC mapping because ISPs will be allowed to report marketing speeds and not actual speeds to the FCC. The Slate article suggests that the biggest problem in today’s maps comes from counting broadband by Census blocks – where if one home has fast broadband, the entire Census block is counted as fast. That is a much smaller issue than people assume. The majority of misstated rural speeds today come instead from ISPs that claim they sell a speed that is much faster than what is delivered. Big telcos today report rural areas as having 25/3 capability for no reason other than the ISP says so – when in reality there might not be even one customer in that area that has even 10/1 Mbps DSL. The big telcos have successfully been lying about speed capability for years as a way to shield areas against being overbuilt by grants. Recall that Frontier tried to sneak in over 16,000 speed changes for Census blocks just before the deadline of the RDOF grant. The new mapping is not going to be a whit better as long as ISPs can continue to lie about speeds with impunity.

There are a few simple ways to fix some of the worst problems with the maps. First, the FCC could declare that all DSL is no longer broadband and stop bothering to measure DSL speeds. They could do the same with high-orbit satellites that have huge latency issues. But even doing this solves only a portion of the problem. There are still numerous WISPs that report marketing speeds that are far faster than actual speeds. The FCC maps are also about to get inundated by the cellular companies making the same overstated speed claims for fixed rural cellular broadband.

What is so dreadful about all of this is that a rural home may have no real option for broadband but might have FCC maps that show they can buy fast broadband from DSL, one or more WISPs, and one or more fixed cellular providers. The FCC is going to count such a home as a success because it has competition between multiple ISPs – when in reality the home might not have even one real broadband option.

I hate to be one of the few people that keep saying this – but I’m sure that the new FCC maps won’t be any better than the current ones. Unfortunately, by the time that becomes apparent, Congress will have assumed the mapping is good and will have moved on to other issues.

A 10-Gigabit Tier for Grants

One of the biggest flaws in the recent RDOF reverse auction grant was allowing fixed wireless technology to claim the same gigabit technology tier as fiber. The FCC should never have allowed this to happen. While there is a wireless technology that can deliver up to a gigabit of speed to a few customers under specific circumstances, fiber can deliver gigabit speeds to every customer in a network. This is particularly true in a rural setting where the short reach of gigabit wireless at perhaps a quarter mile is a huge limiting factor for using the technology in a rural setting.

But rather than continue to fight this issue for grant programs there is a much easier solution. It’s now easy to buy residential fiber technology that can deliver 10-gigabits of speed. There have been active Ethernet lasers capable of 10-gigabit speeds for many years. In the last year, XGS-PON has finally come into a price range that makes it a good choice for a new passive fiber network – and the technology can deliver 10-gigabit download speeds.

The FCC can eliminate the question of technology equivalency by putting fiber overbuilders into a new 10-gigabit tier. This could give funding fiber the priority over all other technologies. Fixed wireless will likely never be capable of 10-gigabit speeds. Even if that ever is made possible decades from now, by then fiber will have moved on to the next faster generation. Manufacturers are already looking at 40-gigabit speeds for the next generation of PON technology.

Cable company hybrid-fiber coaxial networks are not capable today of 10-gigabit speeds. These networks could possibly deliver speeds of around 6 or 7 gigabits, but only by removing all of the television signals and delivering only broadband.

I don’t know why it was so hard for the FCC to say no to gigabit fixed wireless technology. When the industry lobbied to allow fixed wireless into the gigabit tier, all the FCC had to do was to ask to see a working demo of wireless gigabit speeds working in a rural farm environment where farms are far apart. The FCC should have insisted that the wireless industry demonstrates how every rural household in the typical RDOF area can receive gigabit speeds. They should have been made to show the technology overcomes distance and line-of-sight issues. There is no such demo because the wireless technology can’t do this – at least not without building fiber and establishing a base transmitter at each farm. The FCC really got suckered by slick PowerPoints and whitepapers when they should have instead asked to see the working demo.

Don’t get me wrong – I don’t hate the new wireless technologies. There are small towns and neighborhoods in rural county seats that could really benefit from the technology. The new meshed networks, if fed by fiber, can superfast bandwidth to small pockets of households and businesses. This can be a really attractive and competitive technology.

But this is not fiber. Every rural community in America knows they want fiber. They understand that once you put the wires in place that fiber is going to be providing solutions for many decades into the future. I think if fiber is built right that it’s a hundred-year investment. Nobody believes this to be true of fixed wireless. The radios are all going to be replaced many times over the next hundred years and communities worry about having an ISP who will make that continual reinvestment.

But since there is such an easy way to fix this going forward, these arguments about gigabit wireless can be largely moot. If the FCC creates a 10-gigabit tier for grants, then only fiber will qualify. The fixed wireless folks can occupy the gigabit tier and leave most other technologies like low-orbit satellite to some even lower tier. The FCC made a mistake with RDOF that they can’t repeat going forward – the agency declared that other technologies are functionally equivalent to fiber – and it’s just not true.

Reporting the Broadband Floor

I want to start by giving a big thanks to Deb Socia for today’s blog. I wrote a recent blog about the upcoming public reporting process for the FCC maps. In that blog, I noted that ISPs are going to be able to continue to report marketing speeds in the new FCC mapping. An ISP that may be delivering 3 Mbps download will continue to be able to report broadband speeds of 25/3 Mbps as long as that is marketed to the public. This practice of allowing marketing speeds that are far faster than actual speeds has resulted in a massive overstatement of broadband availability. This is the number one reason why the FCC badly undercounts the number of homes that can’t get broadband. The FCC literally encourages ISPs to overstate the broadband product being delivered.

In my Twitter feed for this blog, Deb posted a brilliant suggestion, “ISPs need to identify the floor instead of the potential ceiling. Instead of ‘up to’ speeds, how about we say ‘at least’”.

This simple change would force some honesty into FCC reporting. This idea makes sense for many reasons. We have to stop pretending that every home receives the same broadband speed. The speed delivered to customers by many broadband technologies varies by distance. Telco DSL speeds get noticeably slower the further they are transmitted. The fixed wireless broadband delivered by WISPs loses speed with distance from the transmitting tower. The fixed cellular broadband that the big cellular companies are now pushing has the same characteristic – speeds drop quickly with the distance from the cellular tower.

It’s a real challenge for an ISPs using any of these technologies to pick a representative speed to advertise to customers – but customers want to know a speed number. DSL may be able to deliver 25/3 Mbps for a home that’s within a quarter-mile of a rural DSLAM. But a customer eight miles away might be lucky to see 1 Mbps. A WISP might be able to deliver 100 Mbps download speeds within the first mile from a tower, but the WISP might be willing to sell to a home that’s 10 miles away and deliver 3 Mbps for the same price. The same is true for the fixed cellular data plans recently being pushed by A&T, Verizon, and T-Mobile. Customers who live close to a cell tower might see 50 Mbps broadband, but customers further away are going to see a tiny fraction of that number.

The ISPs all know the limitations of their technology, but the FCC has never tried to acknowledge how technologies behave in real markets. The FCC mapping rules treat each of these technologies as if the speed is the same for every customer. Any mapping system that doesn’t recognize the distance issue is going to mostly be a huge fiction.

Deb suggests that ISPs must report the slowest speed they are likely to deliver. I want to be fair to ISPs and I suggest they report both the minimum “at least” speed and the maximum “up to” speed. Those two numbers will tell the right story to the public because together they provide the range of speeds being delivered in a given Census. With the FCC’s new portal for customer input, the public could weigh in on the “at least” speeds. If a customer is receiving speeds slower than the “at least” speeds, then, after investigation, the ISP would be required to lower that number in its reporting.

This dual reporting will also allow quality ISPs to distinguish themselves from ISPs that cut corners. If a WISP only sells service to customers within 5 or 6 miles of a transmitter, then the difference between its “at least” speeds and its “up to” speeds would be small. But if another WISP is willing to sell a crappy broadband product a dozen miles from the transmitter, there would be a big difference between its two numbers. If this is reported honestly, the public will be able to distinguish between these two WISPs.

This dual reporting of speeds would also highlight the great technologies – a fiber network is going to have a gigabit “at least” and “up to” speed. This dual reporting will end the argument that fixed wireless is a pure substitute for fiber – which it clearly is not. Let the two speeds tell the real story for every ISP in the place of marketing hype.

I’ve been trying for years to find a way to make the FCC broadband maps meaningful. I think this is it. I’ve never asked this before, but everybody should forward this blog to the FCC Commissioners and politicians. This is an idea that can bring some meaningful honesty into the FCC broadband maps.

Public Reporting of Broadband Speeds

The FCC’s Acting Chairman Jessica Rosenworcel wrote a recent blog that talks about the progress the FCC is making towards revising the FCC mapping system. The blog concentrates on the upcoming consumer portal to provide input into the FCC maps.

It’s good to see progress finally being made on the maps – this has been discussed but not implemented for over two years. And it’s good that the public will have a way to provide input to the FCC database. Hopefully, the FCC will change the rules before the new mapping tools are implemented because the current rules don’t let the public provide any worthwhile input to the mapping data.

The current mapping rules were implemented in Docket FCC 21-20 on January 13 of this year – one of the last acts of outgoing Chairman Ajit Pai. Those rules outline a consumer input process to the mapping that is going to be a lot less impactful than what the public is hoping for.

The new FCC maps will require that ISPs draw ‘polygons’ around the areas where there is existing broadband coverage, or where the ISP can install broadband with 10 days of a consumer request. A consumer can challenge the availability of broadband at their home. If a consumer claims that broadband is not available at an address, the ISP is required to respond. If there is no broadband available at the address, the likely response of the ISP will be to amend the polygon to exclude the challenged address. I guess that consumers who can’t buy broadband from a given ISP can gain some satisfaction from having that ISP fix the maps to set the record straight. But the complaint is unlikely to get broadband to the home where broadband is not available.

Unfortunately, the challenge process is not going to help in the much more common situation where a household has dreadfully slow broadband. The ISP might be advertising speeds of ‘up to 25/3 Mbps’ but delivering only a tiny fraction of that speed. This is the normal situation for rural DSL and many fixed wireless connections – speeds customers see are much slower than what ISPs claim on the FCC maps.

Unless the FCC changes the rules established in this Docket, a consumer claiming slow broadband will see no change to the FCC map. The January rules allow ISPs to continue to claim marketing speeds in the new FCC mapping system. A rural ISP can continue to claim ‘up to 25/3 Mbps’ for an area with barely functioning broadband as long as the ISP advertises the faster up-to speed.

The FCC needs to change the rules established in the January Docket or they are going to witness a rural revolt. Consumers that are seeing broadband speeds that are barely faster than dial-up are going to flock to the new FCC reporting portal hoping for some change. Under the current rules, the FCC is going to side with the ISP that advertises speeds faster than it delivers.

The FCC has a real dilemma on how to change the public reporting process. The FCC can’t automatically side with each consumer. Any given consumer that reports slow speeds might be seeing the impact of an old and outdated WiFi router, or have some other issue inside the home that is killing the speed delivered by the ISP. But when multiple homes in a neighborhood report slow speeds, then the ISP is almost certainly delivering slow speeds.

Unfortunately, there is no way to report ‘actual’ speeds on an FCC map. If you ever ran a speed test multiple times during a day and night you know that the broadband speed at your home likely varies significantly during a day. What’s the ‘actual’ broadband data speed for a home that sees download speeds vary from 5 Mbps to 15 Mbps at different times of the day?

The consumer challenge of FCC data was dreamed up to allow the public to tell a broadband story different than what the ISPs have been reporting to the FCC. Unfortunately, it’s not going to work to anybody’s satisfaction. The real culprit in this story is the idea that we can define broadband somehow by speed – that there is a functional difference between a broadband connection that delivers 5 Mbps or 15 Mbps. The fact is that both connections are dreadfully slow and should not be considered as broadband. But as long as we have grant programs that fund areas that have speeds under 10/1 Mbps or 25/3 Mbps, we’ll keep having these dumb processes that pretend that we know the actual speed on even a single rural broadband connection. The fact is – we don’t and we can’t.

AT&T Says No to Symmetrical Broadband

Since it seems obvious that the new FCC will take a hard look at the definition of broadband, we can expect big ISPs to start the lobbying effort to persuade the FCC to make any increase in the definition as painless as possible. The large ISPs seem to have abandoned any support for the existing definition of 25/3 Mbps because they know sticking with it gets them laughed out of the room. But many ISPs are worried that a fast definition of broadband will bypass their technologies – any technology that can’t meet a revised definition of broadband will not be eligible for future federal grants, and even more importantly can be overbuilt by federal grant recipients.

AT&T recently took the first shot I’ve seen in the speed definition battle. Joan March, the Executive VP of Federal Regulatory Relations wrote a recent blog that argues against using symmetrical speeds in the definition of bandwidth. AT&T is an interesting ISP because the company operates three different technologies. In urban and suburban areas AT&T has built fiber to pass over 14 million homes and businesses and says they are going to pass up to 3 million more over the next year or two. The fiber technology offers at least a symmetrical gigabit product. AT&T is also still a huge provider of DSL, but the company stopped installing DSL customers in October of last year. AT&T’s rural DSL has speeds far south of the FCC’s 25/3 definition of bandwidth, although U-verse DSL in larger towns has download speeds as fast as 50 Mbps.

The broadband product that prompted the blog is AT&T’s rural cellular product. This is the company’s replacement for DSL, and AT&T doesn’t want the FCC to declare the product as something less than broadband. AT&T rightfully needs to worry about this product not meeting the FCC definition of broadband – because in a lot of places it is slower than 25/3 Mbps.

Reviews.org looks at over one million cellular data connections per year and calculates the average data speeds for the 3 big cellular carriers. The report for early 2021 shows the following nationwide average speeds for cellular data. These speeds just barely qualify as broadband with the current 25/3 definition.

AT&T – 29.9 Mbps download, 9.4 Mbps upload

T-Mobile – 32.7 Mbps download, 12.9 Mbps upload

Verizon – 32.2 Mbps download, 10.0 Mbps upload

PC Magazine tests cellular speeds in 26 major cities each summer. In the summer of 2020, they showed the following speeds:

AT&T – 103.1 Mbps download, 19.3 Mbps upload

T-Mobile – 74.0 Mbps download, 25.8 Mbps upload

Verizon – 105.1 Mbps download, 21.6 Mbps upload

Cellular data speeds are faster in cities for several reasons. First, there are more cell sites in cities. The data speed a customer receives on cellular is largely a function of how far the customer is from a cell site, and in cities, most customers are within a mile of the closest cell site. The cellular carriers have also introduced additional bands of spectrum in urban areas that are not being used outside cities. The biggest boost to the AT&T and Verizon urban speeds comes from the deployment of millimeter-wave cellular hotspots in small areas of the downtowns in big cities – a product that doesn’t use traditional cell sites, but which helps to increase the average speeds.

Comparing the urban speeds to the average speeds tells us that rural speeds are even slower than the averages. In rural areas, cellular customers are generally a lot more than one mile from a cell tower, which really reduces speeds. My firm does speed tests, and I’ve never seen a rural fixed cellular broadband product with a download speed greater than 20 Mbps, and many are a lot slower.

The AT&T blog never makes a specific recommendation of what the speeds ought to be. But Marsh hints at a new definition at 50/10 or 100/20. My firm has also done a lot of surveys during the pandemic and we routinely see about one-third of households or more that are unhappy with the upload speeds on urban cable company networks – which have typical upload speeds between 15 Mbps and 20 Mbps. AT&T is hoping that the FCC defines broadband with an upload speed of 10-20 Mbps – a speed that many homes already find inadequate today. That’s the only way that rural fixed cellular can qualify as broadband.