Category Archives: Regulation – What is it Good For?

Minnesota Sues Comcast

Lori Swanson, the Attorney General of Minnesota sued Comcast on December 21 seeking refunds to all customers who were harmed by the company’s alleged violation of the state’s Prevention of Consumer Fraud Act and Uniform Deceptive Trade Practices Act. The complaint details the sort of practices that we’ve come to expect from most of the big cable companies – and hopefully this serves as a warning to smaller ISPs that might be following similar practices. It’s an interesting read.

The most significant dollar complaint is that Comcast has defrauded customers about the true nature of two fees – the ‘Regional Sports Network Fee’ and the ‘Broadcast TV’ fee. These two fees now total $18.25 per month. These fees are both a part of every cable package and are not optional to customers, but Comcast does not mention them when advertising the cable products. Further, Comcast customer service has repeatedly told the public that these fees are mandated by the government and are some a tax that is not set by Comcast.

Comcast only started charging separately for these two fees in 2014, but the size of these line items has skyrocketed on bills. In recent years the company has put a lot of the annual rate increases into these fees, allowing the company to continue to advertise low prices. The Regional Sports fee passes along the cost of Fox Sports North, and perhaps other regional sports. The Broadcast TV fee includes the amounts that Comcast pays local affiliate stations for ABC, CBS, FOX and NBC.

Interestingly, Comcast was previously sued over this same issue and settled the case without a verdict. As part of that suit the company promised to fix the problems, but they continued into 2017. In a pleading that is sure to displease company employees, Comcast threw its customer service reps under the bus and blame the issue on them. Comcast argues that breaking out these fees makes it easier for customers to know what they are paying for – but there are numerous examples cited in the complaint where new customers were surprised at the size of the first bill they receive from the company.

The complaint also says that the company often misrepresents the fees for equipment rental such as cable settop boxes, digital adapters and broadband modems. The complaint says that for some packages these fees add 30% to the cost of the product and are not fully disclosed to customers.

The complaint also says that Comcast routinely adds unwanted fees to customer bills. Customers that are visited by Comcast field technicians, who visit a business office or who buy from a Comcast door-to-door salesperson are often surprised to see additional products added to their bill. The complaint blames this on the practice of paying commissions to employees for sales.

The complaint notes that Comcast is well aware of these issues. The company settled an FCC complaint about the same issues in 2016 and late last year made refunds to more than 20,000 customers in Massachusetts over these same issues.

It’s not hard to verify some of the issue. If you go to the Comcast website you’ll find that it’s almost impossible to find the real cost of their cable and broadband products. The company constantly advertises low-priced specials that don’t mention the extra programming fees or the equipment fees.

This is a cautionary tale for smaller ISPs that compete with Comcast or other large cable companies. It’s always tempting to advertise cheap special prices in response to big cable company advertising. I know many smaller cable providers that have also separated out the sports and broadcast fees and who are not always fully forthcoming about equipment charges and other fees. It’s hard to watch customers leave who are lured by falsely advertised low prices – but most small ISPs have elected to deal with customers fairly as a way to differentiate themselves from the big companies.

The Huge CenturyLink Outage

At the end of December CenturyLink had a widespread network outage that lasted over two days. The outage disrupted voice and broadband service across the company’s wide service territory.

Probably the most alarming aspect pf the outage is that it knocked out the 911 systems in parts of fourteen states. It was reported that calls to 911 might get a busy signal or a recording saying that “all circuits are busy’. In other cases, 911 calls were routed to the wrong 911 center. Some jurisdictions responded to the 911 problems by sending out emergency text messages to citizens providing alternate telephone numbers to dial during an emergency. The 911 service outages prompted FCC Chairman Ajit Pai to call CenturyLink and to open a formal investigation into the outage.

I talked last week to a resident of a small town in Montana who said that the outage was locally devasting. Credit cards wouldn’t work for most of the businesses in town including at gas stations. Businesses that rely on software in the cloud for daily operations like hotels were unable to function. Bank ATMs weren’t working. Customers with CenturyLink landlines had spotty service and mostly could not make or receive phone calls. Worse yet, cellular service in the area largely died, meaning that CenturyLink must have been supplying the broadband circuits supporting the cellular towers.

CenturyLink reported that the outage was caused by a faulty networking management card in a Colorado data center that was “propagating invalid frame packets across devices”. It took the company a long time to isolate the problem, and the final fix involved rebooting much of the network electronics.

Every engineer I’ve spoken to about this says that in today’s world it’s hard to believe that it would take 2 days to isolate and fix a network problem caused by a faulty card. Most network companies operate a system of alarms that instantly notify them when any device or card is having problems. Further, complex networks today are generally supplied with significant redundancy that allows the isolation of troubled components of a network in order to stop the kind of cascading outage that occurred in this case. The engineers all said that it’s almost inconceivable to have a single component like a card in a modern network that could cause such a huge problem. While network centralization can save money, few companies route their whole network through choke points – there are a dozen different strategies to create redundancy and protect against this kind of outage.

Obviously none of us knows any of the facts beyond the short notifications issued by CenturyLink at the end of the outage, so we can only speculate about what happened. Hopefully the FCC enquiry will uncover the facts – and it’s important that they do so, because it’s always possible that the cause of the outage is something that others in the industry need to be concerned about.

I’m only speculating, but my guess is that we are going to find that the company has not implemented best network practices in the legacy telco network. We know that CenturyLink and the other big telcos have been ignoring the legacy networks for decades. We see this all of the time when looking at the conditions of the last mile network, and we’ve always figured that the telcos were also not making the needed investments at the network core.

If this outage was caused by outdated technology and legacy network practices then such outages are likely to recur. Interestingly, CenturyLink also operates one of the more robust enterprise cloud services in the country. That business got a huge shot in the arm through the merger with Level 3, with new management saying that all of their future focus is going to be on the enterprise side of the house. I have to think that this outage didn’t much touch that network, just more likely the legacy network.

One thing for sure is that this outage is making CenturyLink customers look for an alternative. A decade ago the local government in Cook County, Minnesota – the northern-most county in the state – was so frustrated by continued prolonged CenturyLink network outages that they finally built their own fiber-to-the-home network and found alternate routing into and out of the County. I talked to one service provider in Montana who said they’ve been inundated after this recent outage by businesses looking for an alternate to CenturyLink.

We have become so reliant on the Internet that major outages are unacceptable. Much of what we do everyday relies on the cloud. The fact that this outage extended to cellular outages, a crash of 911 systems and the failure of credit card processing demonstrates how pervasive the network is in the background of our daily lives. It’s frightening to think that there are legacy telco networks that have been poorly maintained that can still cause these kinds of widespread problems.

I’m not sure what the fix is for this problem. The FCC supposedly washed their hands of the responsibility for broadband networks – so they might not be willing to tackle any meaningful solutions to prevent future network crashes. Ultimately the fix might the one found by Cook County, Minnesota – communities finding their own network solutions that bypass the legacy networks.

How Bad is the Digital Divide?

The FCC says that approximately 25 million Americans living in rural areas don’t have access to an ISP product that would be considered as broadband – currently defined as 25/3 Mbps. That number comes out of the FCC’s mapping efforts using data supplied by ISPs.

Microsoft tells a different story. They say that as many as 163 million Americans do not use the Internet at speeds that the FCC considers as broadband. Microsoft might be in the best position of anybody in the industry to understand actual broadband performance because the company can see data speeds for every customer that updates Windows or Microsoft Office – that’s a huge percentage of all computer users in the country and covers every inch of the country.

Downloading a big software update is probably one of the best ways possible to measure actual broadband performance. Software updates tend to be large files, and the Microsoft servers will transmit the files at the fastest speed a customer can accept. Since the software updates are large files, Microsoft gets to see the real ISP performance – not just the performance for the first minute of a download. Many ISPs use a burst technology that downloads relatively fast for the first minute or so, but then slows for the rest of a download – a customer’s true broadband speed is the one that kicks in after the burst is finished. The burst technology has a side benefit to ISPs in that it inflates performance on standard speed tests – but Microsoft gets to see the real story.

I’ve ranted about the FCC’s broadband statistics many times. There are numerous reasons why the FCC data is bad in rural America. Foremost, the data is self-reported by the big ISPs who have no incentive to tell the FCC or the public how poorly they are doing. It’s also virtually impossible to accurately report DSL speeds that vary from customer to customer according to the condition of specific copper wires and according to distance from the DSL core router. We also know that much of the reporting to the FCC represents marketing speeds or ‘up-to’ speeds that don’t reflect what customers really receive. Even the manner of reporting to the FCC, by Census block, distorts the results because when a few customers in a block get fast speeds the FCC assumes that everyone does.

To be fair, the Microsoft statistics measure the speeds customers are actually achieving, while the FCC is trying to measure broadband availability. The Microsoft data includes any households that elect to buy slower broadband products to save money. However, there are not 140 million households that purposefully buy slow broadband (the difference between 163 million and 24 million). The Microsoft numbers tell us that the actual speeds in the country are far worse than described by the FCC – and for half of us slower than 25/3 Mbps. That is a sobering statistic and doesn’t just reflect that rural America is getting poor broadband, but also that many urban and suburban households also aren’t achieving 25/3 Mbps.

I’ve seen many real-life examples of what Microsoft is telling us. At CCG Consulting we do community surveys for broadband and we sometimes see whole communities where the achieved speeds for customers is lower than the speeds advertised by the ISPs. We often see a lot more households claim to have no broadband or poor broadband than would be expected using the FCC mapping data. We constantly see residents in urban areas complain that broadband with a relatively fast speed seems slow and sluggish.

Microsoft reported their findings to the FCC, but I expect the FCC to ignore their story. This is a drastic departure from the narrative that the FCC is telling Congress and the public. I wrote a blog just a few weeks ago describing how the FCC is claiming that big ISPs are delivering the speeds that they market. Deep inside the recent reports the FCC admitted that DSL often wasn’t up to snuff – but the Microsoft statistics mean that a lot of cable companies and other ISPs are also under-delivering.

In my mind the Microsoft numbers invalidate almost everything that we think we know about broadband in the country. We are setting national broadband policy and goals based upon false numbers – and not numbers that are a little off, but rather than are largely a fabrication. We have an FCC that is walking away from broadband regulation because they have painted a false narrative that most households in the country have good broadband. It would be a lot harder for politicians to allow broadband deregulation if the FCC admitted that over half of the homes in the country aren’t achieving the FCC definition of broadband.

The FCC has been tasked by Congress to find ways to improve broadband in areas that are unserved or underserved – with those categories being defined by the FCC maps. The Microsoft statistics tell us that there are huge numbers of underserved households, far higher than the FCC is recognizing. If the FCC was to acknowledge the Microsoft numbers, they’d have to declare a state of emergency for broadband. Sadly, the FCC has instead doomed millions of homes from getting better broadband by declaring these homes as already served with adequate broadband – something the Microsoft numbers say is not true.

The current FCC seems hellbent on washing their hands of broadband regulation, and the statistics they use to describe the industry provide the needed cover for them to do so. To be fair, this current FCC didn’t invent the false narrative – it’s been in place since the creation of the national broadband maps in 2009. I, and many others predicted back then that allowing the ISPs to self-report performance would put us right where we seem to be today – with statistics that aren’t telling the true story. Microsoft has now pierced the veil to see behind the curtain – but is there anybody in a position of authority willing to listen to the facts?

FCC Urban Rate Survey

The FCC collects retail prices annually from urban carriers for landline telephone and broadband services. These prices are used to determine benchmark rates for rural areas for incumbent local exchange rate-of-return carriers, incumbent price-cap carriers receiving CAF Phase II support, recipients of the Rural Broadband Experimental grants, and winners of the recent Connect America Fund Phase II Auction.

I find it ironic that the FCC says they no longer regulate broadband, yet they still define maximum broadband rates allowed for various classes of carriers. The fact is that there are still numerous ways that the FCC is regulating broadband and since many of these mandates come from Congress the FCC will never be able to back out of broadband regulations entirely.

The FCC publishes spreadsheets summarizing of the rates they collected. The benchmark rate for voice defines the highest and lowest rates that are allowable by the affected carriers. Starting in 2019 the lowest rate that can be charged for residential voice is $26.98 and the highest is $51.61.

The following table is for the residential broadband rates listed by AT&T in North Carolina, where I live. The rates listed are non-discounted rates and many customers pay less due to bunding or to negotiating a lower rate. It is striking to me that AT&T charges $70 per month for a 10/1 Mbps connection on DSL and also for a 100/100 Mbps connection on fiber. This is one of the issues that has rural customers up in arms – they pay high prices for less performance, particularly considering that they often only receive a fraction of the published speeds shown in the table. It’s also worth noting that AT&T has a monthly data cap on every product other than their symmetrical gigabit product.

Download Upload Data Cap
Mbps Mbps GB Price Technology
3 0.384 150 $56 DSL
5 1 1000 $60 DSL
5 5 1000 $60 FTTP
6 0.512 150 $61 DSL
10 1 1000 $70 DSL
18 1.5 1000 $70 DSL
25 25 1000 $70 DSL
25 5 1000 $70 FTTP
25 25 1000 $60 FTTP
50 50 1000 $70 DSL
50 10 1000 $70 DSL
50 50 1000 $70 FTTP
75 20 1000 $70 DSL
100 20 1000 $70 DSL
100 100 1000 $70 FTTP
300 300 1000 $90 FTTP
1000 1000 unlimited $100 FTTP

The benchmarks for broadband are extremely high and it’s doubtful that many carriers are even trying to charge the rates shown in the table below. There are separate rate caps calculated for Alaska and the rest of the US.

Download Bandwidth (Mbps) Upload Bandwidth (Mbps) Capacity Allowance (GB) 2019 U.S.

($)

 2019 AK

 ($)
4 1 200 66.12 113.19
4 1 Unlimited 70.76 119.06
10 1 200 72.31 121.54
10 1 Unlimited 77.30 127.75
25 3 200 77.65 129.52
25 3 Unlimited 82.66 135.75
25 5 200 78.49 129.78
25 5 Unlimited 83.50 136.01
50 5 Unlimited 100.85 153.64
100 10 Unlimited 106.23 161.16
250 25 Unlimited 128.69 203.67
500 50 Unlimited 148.35 223.87
1000 100 Unlimited 162.33 232.38

This is one of the exercises that the FCC must go through that seems largely meaningless. They set a really high rate cap for those that participate in various FCC subsidy programs – but realistically it’s unlikely that many carriers would want to charge more than $100.85 for a 50/5 Mbps connection – but if they did, customers have a legal recourse. What’s more valuable from this exercise is seeing the list prices of the larger urban ISPs – something that’s getting harder to find on line.

The FCC Looks at 911

The FCC recently released its tenth annual report to Congress reporting on the collection and distribution of 911 fees nationwide. The report includes a number of interesting statistics, a few which will be listed below.

But first I’d like to look backwards a bit because we now take 911 for granted, but it hasn’t always been so. 911 has been implemented during my adult lifetime. The idea for having an emergency phone number was first introduced in 1967 by Lyndon Johnson’s Commission on Law Enforcement. AT&T selected the 9-1-1 digits the following year. An independent telco, the Alabama Telephone Company leaped on the concept and introduced 911 in Haleyville, Alabama in 1968 – but it then took decades for the implementation nationwide since this was deemed a local issue to be implemented by local governments. I recall the introduction of 911 in the DC suburbs in the mid-70s, accompanied by a flurry of radio, newspaper and TV ads to inform the public of the new safety service. There were major metropolitan areas like the Chicago suburbs that didn’t get 911 until the early 1980s.

911 service has been enhanced over the years. For example, by 2015 96% of homes in the US were covered by E-911 (enhanced) where the 911 operator knows the caller’s location according to the phone number for landlines or by using triangulation of cell sites for mobile phones. Currently 911 systems are upgrading to NG911 (next generation) that ties 911 systems into broadband to be able to relay text messages, photos and videos as part of the 911 process.

Some of the interesting statistics from the FCC report:

  • In 2017 almost $3 billion was collected in 911 fees to fund local 911 efforts. The total cost to provide 911 was reported at $4.8 billion, with 911 services in many states also funded partially by tax revenues.
  • States collect 911 fees in different ways. This includes flat rates per telephone or cellular lines, percentage of telecommunications bills, and flat rate per subscriber. Fees vary widely and range from $0.20 per residential landline in Arizona to $3.34 in West Virginia per cell phone. There are states that charge eve more for business landlines.
  • Most states use the 911 fees to fund the 911 service, but six states – Montana, New Jersey, New York, Rhode Island and West Virginia use some of their 911 fee to fund non-safety purposes or even just to go into the general funds of the state. In total $284 million was diverted from collected 911 fees.
  • Thirty-five states, Puerto Rico and the District of Columbia have begun the process of upgrading to NG911.
  • Sixteen states have deployed statewide Emergency Services IP Networks (ESInets) for exclusive use of public safety agencies.
  • Thirty states, Guam, Puerto Rico and the US Virgin Islands have not taken any steps for cybersecurity for 911 centers (PSAPs).
  • There are 5,232 PSAPs in the country. These range from tiny centers in sheriff stations in rural counties to massive 911 centers in major metropolitan areas. For example, Washington DC has one PSAP while there are 586 in Texas.
  • 1,381 PSAPs now had the ability to communicate with the public by text message. Another 1,103 PSAPs will be implementing that capability in 2018.
  • There were over 39,000 operators employed to take 911 calls in 2017.
  • Only 44 states reported 911 call volumes and in those states there were over 211 million calls to 911. Over 70% of calls now come from cellular phones.

I know it’s easy to hate regulation, but without it we wouldn’t have a 911 system that works so well. People in most of the country feel a lot safer knowing they can dial 911 and get help when needed.

A Corporate Call for Privacy Legislation

Over 200 of the largest companies in the country are proposing a new set of national privacy laws that would apply to large companies nationwide. They are pushing to have this considered by the upcoming Congress.

The coalition includes some of the largest companies in Silicon Valley like Apple and Oracle, but it doesn’t include the big three of Facebook, Google and Amazon. Among the other big businesses included the group are the largest banks like Bank of America and Wells Fargo, big carriers like AT&T and big retailers like Walmart.

As you might expect, a proposed law coming from the large corporations would be favorable to them. They are proposing the following:

  • Eliminate Conflicting Regulations. They want one federal set of standards. States currently have developed different standards for privacy and for issues like defining sensitive information. There are also differing standards by industry such as for medical, banking and general corporations;
  • Self-regulation. The group wants the government to define the requirements that must be met but don’t want specific methodologies or processes mandated. They argue that there is a history of government technical standards being obsolete before they are published;
  • Companies Can Determine Interface with Consumers. The big companies want to decide how much rights to give to their customers. They don’t want mandates for defining how customer data can be used or for requiring consumer consent to use data. They don’t want mandates giving consumers the right to access, change or delete their data;
  • National Standard for Breach Notification. They want federal, rather than differing state rules on how and when a corporation must notify customers if their data has been breached by hackers;
  • Put the FTC in Charge of these Issues. They want the FTC to enforce these laws rather than State Attorney Generals;
  • Wants the Laws to Only Apply to Large Corporations. They don’t want rigid new requirements on small businesses that don’t process much personal data.

There are several reasons big companies are pushing for legislation. There are currently different privacy standards around the country due to actions brought by various State Attorney Generals and they’d like to see one federal standard. But like most laws the primary driver behind this legislation is monetary. Corporations are seeing some huge hits to the bottom line as a result of data breaches and they hope that having national rules will provide a shield against damages – they hope that a company that is meeting federal standards would be shielded from large lawsuits after data breaches.

I look at this legislation both as a consumer and as somebody working in the small carrier industry. With my consumer hat on there are both good and bad aspects of the proposed rules. On the positive side a set of federal regulations ought to be in place for a complex issue that affects so many different industries. For example, it is hard for a corporation to know what to do about a data breach if they have to satisfy differing rules by state.

But the negatives are huge from a consumer perspective. It’s typical political obfuscation to call this a privacy law because it doesn’t provide any extra privacy for consumers. Instead it would let each corporation decide what they want to disclose to the public and how companies use consumer data. A better name for the plan might be the Data Breach Lawsuit Protections Act.

There are also pros and cons for this for small carriers. I think all of my clients would agree that we don’t need a new set of regulations and obligations for small carriers, so small carriers will favor the concept of excusing smaller companies from some aspect of regulations.

However, all ISPs are damaged if the public comes to distrust ISPs because of the behavior of the largest ISPs. Small ISPs already provide consumer privacy. I’ve never heard of a small ISP that monitors customer data, let alone one that is trying to monetize their customers’ data. Small ISPs are already affording significant privacy rights to customers compared to the practices of AT&T, Verizon or Comcast who clearly view customer data as a valuable asset to be exploited rather than something to protect. The ISP industry as a whole would benefit by having rules that foster greater customer trust.

I’m not sure, however, that many small ISPs would automatically notify customers after a data breach – it’s a hard question for every corporation to deal with. I think customers would trust us more if there were clear rules about what to do in the case of a breach. This proposed law reminds me that this is something we should already be talking about because every ISP is vulnerable to hacking. Every ISP ought to be having this conversation now to develop a policy on data breaches – and we ought to tell our customers our plans. Small ISPs shouldn’t need a law to remind us that our customers want to trust us.

Does the Farm Bill Kill USDA Loans?

Today I feel like the Grinch, because I see the broadband provisions in the Farm Bill largely killing the USDA loan program and I don’t see anybody else writing about it. I’ve seen dozens of articles praising the new broadband programs created last week by the passage of the Farm Bill. To be fair, three of the announced programs are good news. The legislation created the following outright grants that, while small, are going to bring some solutions for rural broadband. The bill funds these three programs through 2023:

  • Funds the Community Connect grants at $50 million annually. These grants have been around for many years and distribute grants based upon an economic test, with grants intended for the poorest areas getting preference;
  • $10 million annually in a new program to fund middle mile fiber in rural areas;
  • $10 million annually for the grant program that was formerly called the “Rural Gigabit Network Pilot Program” but which has been relabeled as the “Innovative Broadband Advancement Program”. These grants are to be awarded to programs that demonstrate innovative technologies or methods of broadband deployment.

I’ve seen estimates that it might take as much as $60 billion in federal assistance to bring broadband everywhere in rural America and these three grants are barely a blip against the huge rural broadband shortfall – but they are better than nothing.

The flagship broadband announcement in the Farm Bill is the announcement that $350 million a per year will be given the existing USDA loan program, and that the loan awards can now also contain some portion of broadband grants, which might make it easier to build in high-cost areas.

But there is one killer provision of that new funding which I think might make it almost impossible to use. Any area receiving this funding can’t have more than 10% of households that can receive 10/1 Mbps broadband. That’s the same speed test that is being applied to the $600 million e-Connectivity grant program that I discussed in yesterday’s blog. This is a drastic change for USDA loans that currently can be awarded for areas where up to 85% of households can already get 10/1 Mbps broadband. Congress has decided to provide federal funding in the future only for those areas that have no broadband rather than spending money to upgrade inadequate broadband.

If the USDA strictly applies this 10% test I think it will become nearly impossible to get a USDA broadband loan starting in 2019. The 10% test will work for the e-Connectivity grants because ISPs can request funding for small pockets of homes that meet the 10% test. Companies that use the e-Connectivity grants to fund unserved homes can still use other funds to build the rest of a rural area.

But outright USDA loans don’t work that way. Anybody getting one of these loans has to pledge 100% of their company’s assets to the USDA and also give the USDA first lien over all other debt. Since other lenders won’t accept a second lien, then anybody going after a future loan from the program will have to get 100% of the funding from the USDA. And that’s where the 10% test will kill the loan program. There are very few places that still meet the 10% test – at least on paper. The big telcos are going to be claiming good DSL throughout rural America and in most places the big telco DSL is just good enough to cover more than 10% of homes in an area.

I’ve seen this legislation touted as a boon to rural electric cooperatives since many of them are considering building fiber to cover their whole service area. I would venture to say that there is no electric coop in the country that will pass the 10% test for their whole service area – and most of them don’t come even close.

An electric coop won’t be able to use the USDA money to build fiber everywhere – if they carve out USDA money to cover the areas that pass the 10% test, then nobody will loan them the money to build the rest. The 100% pledge and lien provisions of the USDA don’t allow for a secondary lender.

Huge swaths of rural America are now theoretically covered by the various CAF II programs, so those areas either now have 10/1 Mbps or are supposed to get it sometime over the next six years from the reverse auction awards. I believe all areas covered by CAF will be considered ineligible for these USDA loans.

I went back and read the law several times because I saw articles that got the facts of the new loan program wrong. The specific rules for the new programs can be found in the latest copy of the Farm bill, starting at Section 6101.

It’s obvious that the big telcos have gotten to the legislators who are writing this legislation. It looks like the 10% and 10/1 test will be the new norm for getting federal broadband funding. As each year goes by fewer and fewer places will qualify for this funding and monies will go unclaimed. Meanwhile, areas that have really crappy broadband, but where more than 10% of homes have fully inadequate 10/1 Mbps speeds will not be eligible for this funding. I saw articles where members of Congress are claiming that this bill will help to solve the rural broadband problem – but the actual provisions of the new USDA loan program tell a different story. This feels more like a sham than a plan to me.

Please see the attached comment that softens these comments. Turns out that 100 USDA loans in the future won’t have to pass the 10% test – that applies if an applicants wants any grant funding.

Gotchas in the e-Connectivity Grant Program

The high-level rules came out on Thursday for the USDA e-Connectivity grants being administered by the RUS. This is $560 million of grants and loans that were authorized by Congress last spring – this was first announced as a $600 million program and I’m not sure where the other $40 million went. I’m not going to list all of the rules of the grants – I’ve seen a dozen websites already that have summarized the key grant requirements. Instead I’m going to talk about a few requirements that I think will be show stoppers for many potential applicants.

RUS Loans are Still Draconian. Only 1/3 of the funding will be outright grants, with the other 2/3 being outright loans or 50/50 loans and grants. This means that most of funding can only go to those who are already RUS borrowers or who are willing and able to accept the draconian RUS loan provisions.

Anybody accepting an RUS loan must pledge 100% of their existing assets to the RUS and also give the RUS an exclusive first lien position on the company. What this means is that anybody that already has a loan elsewhere is not going to be able to take these loans. Existing lenders like CFC. CoBank, or any commercial bank will not accept a second loan position to these new awards. A huge number of telcos and electric cooperatives that borrow elsewhere won’t be able to accept RUS loans, eliminating them from consideration for anything but the 100% grant portion of the program.

These same loan restrictions also make it unlikely that any government entity can accept an award that includes am RUS loan. I’ve worked with nearly a dozen government entities that have pursued RUS loans and none of them have successfully been able to overcome the pledge and other lending hurdles.

The 10% Test. The program has a gotcha slipped in by Congress that no more than 10% of the locations covered by the program can already have existing broadband 10/1 Mbps or greater speeds. This is a giant change from past RUS award programs that allowed up to 85% to have 10/1 speeds. Applicants need to take this requirement seriously and I expect any applications that can’t the lack of existing broadband will be quickly tossed out of consideration. This is not a flexible rule and was inserted into the grant rules by big telco lobbyists who don’t want to see any competition.

This means that any parts of the country previously covered by any federal funding program that required 10/1 Mbps speeds will not be eligible – including past award areas that haven’t yet been upgraded, like the areas recently awarded under the CAF II reverse auction. Applicants are going to have to be extremely careful in defining study areas, almost on a home by home basis. I fully expect RUS to test the study areas hard and I’m positive that outside parties (like incumbent telcos) will be able to intervene if they think an applicant fails this test.

The worst part of this is that we know that the rural broadband maps suck and that there are many places that the FCC considers to have 10/1 broadband that doesn’t have it. Applicants will have a big uphill battle to get funding in these areas.

Requires Two Years of Sound Audits. Applicants need to produce two years of audited solid historical financial performance – meaning start-ups need not bother with the grants. The RUS hasn’t forgotten the big problems they had with start-up companies during the stimulus grant program.

Environmental Impacts. Applicants must analyze the environmental and national historic preservation impacts of a grant request. It’s possible to get out of this requirement if a state official will declare that these tests aren’t required for applicants from their state. Applicants are also going to need affidavits from a state official to describe state broadband grant programs and to describe any conflicts with a grant filing.

Record Keeping. In order to meet the 10% rule I expect study areas to be disjointed –pocket of homes here and there scattered over a larger area. Applicants will somehow have to track costs of construction in these small pockets and not mingle costs with other nearby areas that were not included in a grant supplication. It’s going to be hard to show an audit trail of invoices that are just for the study area.

Prevailing Wage. The announcement doesn’t mention prevailing wage, but I expect this to apply. In past RUS grants this requirement has been included in the detailed descriptions of the grant process that hasn’t yet been released. Prevailing wage means paying construction labor at rates determine by each state, and which in many states reflect the cost of building in the largest cities and not in the rural areas. Prevailing wages can sometimes be so much higher than actual construction company rates that the difference in the wages can wipe out most of the benefit if getting a 50% grant.

Matching Funds Spent First. The grants require that matching funds must be 100% spent before any RUS money. That means the funding sources that incur the highest interest rates must be spent first, adding to the cost of the project. The source of the matching funds needs to be identified by the time of the grant filings.

I’m positive that many will be excited about a new large broadband grant program, but the above grant requirements are going to scare off or disqualify many potential applicants. These hurdles are not by accident – the big telcos really don’t want anybody competing against them and have stacked the deck with the nuances of the rules.

Deregulating Text Messaging

“This is one of the oddest dockets I’ve ever seen”. That’s roughly quoting myself several times over the last year as I read some of the things that the current FCC is up to. I find myself saying that again as I read the FCC’s recent docket that proposes to classify SMS text messaging as a Title I information service. Their stated reason for the reclassification is that it will make it easier to fight text message spam, and that stated reason is where the FCC loses me.

Text message spam is a real thing and I’ve gotten some annoying text spam over the last year and I’d sure hate to see my texting inbox get polluted with crap like my email inbox. However, I doubt that you’ll find any technologist in the industry that will tell you that the way to fight spam of any kind is by waving a magic wand and changing the way that something is regulated. The way you fight spam is to put barriers in place to detect and block it – and that is something that only the carriers that control the flow inside of a communications path can do. It’s the solution that the FCC themselves just pushed recently to try to stop robocalling – by demanding that the telephone industry find a solution.

Yet here sits a docket that blindly declares that reclassifying texting as an information service will somehow dissuade bad actors from sending spam text messages. I’m pretty sure that those bad actors don’t really care about the differences between Title I and Title II regulation.

One of the interesting things about this filing is that past FCCs have never definitively said how texting is regulated. Over the years the industry has come to assume that it’s regulated under Title II just like a telephone call – because functionally that’s all a text message is, a telephone call made using texted words rather than a voice call.

To some extent this docket is the first time the FCC has every officially addressed the regulatory nature of text messaging. In the past they made rulings about texting that implies a regulatory scheme, but they never have officially put texting into the Title II category. Now they want to remove it from Title II authority – the first time we’ve ever been told definitively that text is already a Title II service. Here are some of the past FCC treatment of the regulatory nature of text messages:

  • In 1994 the FCC ruled that systems that store and forward telecommunications messages, like SMS texting are ‘interconnected’ services, which at that time were clearly regulated by Title II. But there was no specific statement at the time that texting was a Title II service.
  • In the Telecommunications Act of 1996 the FCC defined a telecommunications service for the first time – which was defined as a service that uses telephones and the PSTN to communicate. The 1996 Act didn’t mention texting, but it clearly fits that definition.
  • In 2003 the FCC declared that text messages were ‘calls’ when the agency implemented the Telephone Consumer Protection Act, which was the same treatment given to other Title II telephone services.
  • In 2007 the FCC included texting as one of the Title II services for which cellular carriers must allow roaming.
  • In 2011 USAC began enforcing the inclusion of text revenues as a Title II interstate revenues that used to assess monies owed to the Universal Service Fund.

All of these regulatory actions implied that texting is a Title II service, although that was never explicitly stated until now, when the FCC wants to reclassify it to be an information service. Reclassification doesn’t pass the ‘quack like a duck test’ because telephone calls and anything like them fit squarely as Title II services. Texting is clearly a type of telephone call and any person on the street will tell you that a text message from a cellphone is just like a phone call using text rather than voice.

Unfortunately, the only conclusion I can draw from this docket is that the FCC has an ulterior motive since their stated reasons for wanting to reclassify texting are pure bosh. There seem to be no obvious reasons for the reclassification. There are no parties in the industry, including the cellular carriers, that have been clamoring for this change. Further, the change will have the negative impact of further shrinking the Universal Service Fund – and expanding rural broadband is supposedly the number one goal of this FCC.

This is disturbing for somebody who has followed regulation for forty years. By definition, regulatory agencies are not supposed to push for changes without first opening an industry-wide discussion about the pros and cons of any suggested changes. Regulators are not supposed to hide the motives for their ideas behind false premises.

The only justification for the FCC’s proposed ruling that I can imagine is that the FCC wants to kill all Title II regulation. It seems they are on a mission to eliminate Title II as a regulatory category to make it hard for future FCC’s to reregulate broadband or to bring back network neutrality.

If that’s their real agenda, then we ought to have an open discussion and ask if we ought to eliminate Title II regulation – that’s how it’s supposed to work. The rules establishing the FCC call for a process where the agency floats new ideas to the world so that all interested parties can weigh in. The FCC is not ready to face the backlash from openly trying to kill Title II regulation, so instead of an open debate we are seeing a series of ridiculous attempts to chip quietly away at Title II regulation without overtly saying that’s their agenda.

In my opinion the time when we ought to stop regulating telephone services is getting closer as technology changes the way that we communicate. But that time is not here and there is still room for monopoly abuse of text messaging. There are a number of examples over the last decade where carriers have blocked text messages – sometimes when they disagreed with the content.

I’m disappointed to have an FCC that is using regulatory trickery to achieve their agenda rather than having a bold FCC that is willing to have the public debate that such a decision deserves. Telephone and related services like text messaging were regulated for many reasons and we ought to examine all of the pros and cons before deregulating them.

I’m guessing that this FCC wants to kill Title II regulation without ever having to tell the public that’s their agenda. I think they want to deregulate text messaging and then point to that deregulation as the precedent to justify deregulating all Title II services without having to suffer to criticism that is sure to come when the public realizes this closes the door on net neutrality.