Penalizing Bad FCC Broadband Reporting

It’s universally understood throughout the industry that the broadband data reported by ISPs to the FCC is full of big problems. Some of the problem in the database can be blamed on the FCC, which allows an ISP to claim an entire Census block as having good broadband even if only one customer in the Census block can actually get that faster speed.

However, in looking in detail at counties all over the country, this seems to be a relatively minor part of the overstatement of broadband. For example, the issue crops the in Census blocks near to a town that has cable broadband, and the FCC reporting system usually assumes that some homes past the end of the cable network can get fast broadband. The FCC has proposed to fix this by asking ISPs to draw polygons around customers, and if the ISPs serving towns do that right, this issue would disappear.

The much bigger problem in the FCC database come from ISPs that overstate broadband coverage, broadband speeds, or both.  I’ve seen entire counties where the FCC database claims broadband coverage that doesn’t exist.

Part of this problem is due to a poor interpretation of the FCC rules. A lot of ISPs interpret the FCC rules to  mean they should report the fastest speed they advertise instead of the fastest speed they can deliver. I’ve seen numerous places where the big telcos have claimed 15 Mbps or 25 Mbps download on DSL, when speed tests can’t find anybody in the area getting more than 5 Mbps download. I’ve looked at counties where WISPs claim speeds of 50 Mbps up to 300 Mbps when customers largely have speeds under 10 Mbps.

Even more aggrevating are ISPs that claim broadband coverage that doesn’t exist. For example, I’ve seen WISPs that claim coverage of an entire county when they are only located on one or two towers. But this isn’t done only by fixed wireless providers, and the FCC is finally talking about fining an ISP for faulty reporting.

The FCC is threatening to fine Barrier Communications Corp. from New York that markets under BarrierFree. In 2017 the ISP made big news when they falsely claimed that they were providing fiber broadband to 62 million customers that largely didn’t exist. The FCC went published an annual report to Congress that included the imaginary broadband, which led the agency to crow about the big nationwide improvement in broadband coverage. The FCC got egg on their face when the issue was brought to its attention, and the agency was forced to reissue the annual report to Congress. As part of that process, the FCC warned BarrierFree to cease the overreporting.

Apparently, the ISP is at it again because the FCC is now threatening a fine of $164,000 for BarrierFree for continued overreporting. The FCC says that’s the maximum penalty allowed by law. There were supposedly substantial overreporting in both the September 2019 and March 2020 data. To the best of my knowledge this would be the first fine due against an ISP due to false reporting in the 477 process. The FCC has threatened fines against Verizon and a few other ISPs for falsely reporting rural 4G cellular coverage, but I’m not aware of any fines being levied.

The idea of levying fines against ISPs for blatant broadband overreporting is long overdue. There can be huge consequences when ISPs can freely claim broadband coverage that doesn’t exist. The biggest current consequence of such overreporting is that it can block eligibility for grants. The FCC used the faulty 477 data when determining the areas that are eligible for the $16.4 billion in RDOF grants that will be awarded in October. I know of counties where no RDOF grants are being offered due to the FCC data falsely showing counties to already have adequate broadband. There are many rural counties where at least some portion of the county has been incorrectly excluded from RDOF grant eligibility due to ISP overreporting of broadband speeds and coverage.

I have to believe the FCC when they report this is the biggest penalty allowed by law – but it’s not nearly high enough. How large should a fine be if an ISP keeps tens of millions of grant dollars from coming to a county? That question is even more pointed if the overreporting ISP gains a market advantage by keeping out grant funding. In my mind, if an ISP blatantly overreports broadband and keeps $10 million of grant funding from benefitting a county, then that ISP owes that community $10 million. I’m sure there are ISPs that are glad I’m not an FCC Commissioner.

FCC’s 2020 Look at Broadband Speeds

The FCC recently released a Notice of Inquiry asking about the state of broadband in preparation for the upcoming 2021 report to Congress. The FCC is required to annually examine the state of broadband and this is the sixteenth NOI that is the first step towards creating the annual report.

In the NOI, the FCC provides a preview of what they are planning to tell Congress in the upcoming report. The FCC continues to pat itself on the back for closing the digital divide. Consider the following facts cited by the FCC in their opening paragraphs of the NOI:

The number of Americans lacking access to fixed terrestrial broadband service of at least 25/3 Mbps continues to decline, falling more than 14% in 2018 and more than 30% between 2016 and 2018. In addition, the number of Americans without access to 4G Long Term Evolution (LTE) mobile broadband service with a median speed of at least 10/3 Mbps fell approximately 54% between 2017 and 2018. The vast majority of Americans, surpassing 85% of the population in 2018, now have access to fixed terrestrial broadband service at 250/25 Mbps, representing a 47% increase in the number of Americans with access to this speed since 2017. Over the same period, the number of Americans living in rural areas with access to such service increased by 85%. 

These statistics all sound great, but unfortunately, we can’t believe any of these claims. The FCC continues to draw conclusions based upon the badly flawed Form 477 data reported to the agency by ISPs. In every rural county I have examined, there are overstatements by ISPs of broadband speeds and availability – and those overstated coverages are included by the FCC as places that have good broadband. I’ve written blogs about entire counties that the FCC thinks haves good broadband, but where the ISP-reported broadband doesn’t exist. If the FCC’s NOI was being truthful, the above list of statistics would open with this sentence: “This report summarizes the broadband speeds and coverage that ISPs report to us. We have no way to know if any of these claims are true”.

Anybody who digs into the FCC data knows it’s terrible, but it’s impossible to know how bad it is. We get clues every time somebody takes a stab at developing a more accurate broadband map. The State of Georgia undertook a mapping effort and in July identified 507,000 homes in the state that don’t have access to 25/3 broadband. That number was 255,000 homes higher than what was shown by the FCC. If that same ratio holds everywhere in the country, then there are twice as many homes without broadband than what the FCC cites in the NOI. I think in many western states that the FCC data is even worse than what Georgia found.

What I find most troublesome about the NOI is that the FCC is planning to stick to the definition of broadband as 25/3 Mbps. It’s easy to understand why the agency wants to keep this speed as the definition of broadband. If the agency increases the definition of broadband, then overnight a whole lot more homes would be declared to not have good broadband. That would completely kill the FCC’s narrative that they are doing great work and closing the digital divide.

The FCC’s cited statistics argue against 25/3 Mbps as the right definition of broadband. Consider the statement above which says that 85% of homes have access to 250/25 Mbps broadband. If that is true, then almost by definition, the FCC’s should define broadband at least at 250/25 Mbps. After all, the FCC’s mandate from Congress is to measure and close the gap between urban and rural broadband. If urban broadband can deliver 250/25 Mbps to everybody, then by the Congressional mandate the speeds available urban America should be the target for rural America. To keep the definition at 25/3 Mbps is ignoring market reality – that most of the people in the country now have speeds far faster than the FCC’s obsolete definition of broadband. And perhaps worse of all, the FCC is drawing this conclusion based upon 2018 data. We know that homes are using roughly 50% more broadband today today than what they used in 2018.

A New Push to Tax Broadband?

In August, four cities in Indiana – Indianapolis, Evansville, Valparaiso, and Fishers – sued Netflix, Hulu, DirectTV, and Dish Networks claiming that the online video services offered by these companies should have to pay the same franchise fees that cable companies pay for using local rights-of-ways.

I’ve been covering in this blog how cord-cutting has been accelerating, especially this year, and cities are seeing a huge drop in cable franchise fees. These fees are generally levied against the fees charged for traditional cable TV service and are ostensibly to compensate the cities for using the public rights-of-way to deliver TV service.

These fees are a significant source of tax revenues for many communities, and that’s not hard to understand when you realize that the fees range from 3% to 6% that’s added to the cost of every traditional cable TV bill. Most big cable companies say that average cable bills are trending towards $100 per month.

Cities have gotten spoiled by these fees because for the last decade the amount of franchise fees collected has skyrocketed. For over a decade cable companies raised cable rates by 9% or more per year, and those rate increases automatically meant franchise tax revenue increases for cities. While franchise fees might have been relatively small when first imposed, the tax revenues have gotten gigantic as the average cable TV bill approaches $100 per month just for cable.

In a recent blog, I talked about how homes are doing more than just cord-cutting. A survey by Roku showed 25% of TV subscribers are now cord-shavers who have trimmed the size of their cable bill by downgrading packages or dropping extras like movie channels. Cord-shaving also trims franchise tax collection and franchise revenues at cities have to be in a free fall.

Taxes that are imposed unevenly usually eventually are challenged. The cable industry has complained about franchise fees for years, but never seriously tried to eliminate the fees. However, big cable companies are recently yelling foul about competing with online video services that don’t have to collect the franchise fees.

The franchise fees have always been hard to justify from a fairness perspective. If a telephone company or a fiber provider uses the same rights-of-way but doesn’t carry cable TV, then their customers are not charged this same expensive tax. Cities could have more fairly charged a franchise fee on some other basis, such as per mile of cable installed in their cities.  But cities latched onto a cable tax at a time when cable TV was a growing industry.

These Indiana cities are treading into dangerous legal waters because if the courts decide that Netflix doesn’t have to charge the franchise fee, that might provide a legal basis for the cable companies to claim that they also shouldn’t pay.

It would be a disturbing ruling if the online video companies end up having to pay a franchise fee. If Netflix has to pay to use the rights-of-way to reach homes, then why wouldn’t this apply to every other online subscription like newspapers, sports boards, etc. There is nothing particularly different about Netflix’s video signals compared to the numerous other sources of video on the web. Bits from online video data areidentical to every other bit of data delivered across ISP networks.  From a functional perspective, if the cities win this lawsuit, they will be imposing a tax on some, but not all bits passed between an ISP and a customer. That’s a line that I hope we don’t cross.

It’s not hard to understand why cities are unhappy about a drop in cable franchise tax revenues. But any tax that is specific to a given technology is going to change over time. Traditional cable TV as we’ve known it is fading away and could even completely disappear over the next decade. A tax on cable might seem as strange in a decade as a tax in the pass on the proverbial buggy whips.

Time to Stop Talking about Unserved and Underserved

I work with communities all of the time that want to know if they are unserved or underserved by broadband. I’ve started to tell them to toss away those two terms, which are not a good way to think about broadband today.

The first time I remember the use of these two terms was as part of the 2009 grant program created by the American Recovery & Reinvestment Act of 2009. The language that created those grants included language from Congress that defined the two terms. In that grant program, unserved meant any home or business that has a broadband speed of less than 10/1 Mbps. Underserved was defined as homes having speeds above 10/1 Mbps but slower than 25/3 Mbps.

As far as I can tell, these terms have never been defined outside of broadband grant programs. However, the terms began to be widely used when talking about broadband availability. A decade ago, communities all wanted to know if they were unserved or underserved.

The terms began to show up in other grant programs after 2009. For example, the FCC’s CAF II grant program in 2015 gave money to the largest telephone companies in the country and funded ‘unserved’ locations that had speeds less than 10/1 Mbps.

The same definition was used in the ReConnect grants created by Congress in 2018 and 2019. Those grants made money available to bring better broadband to areas that had to be at least 90% unserved, using the 10/1 Mbps definition.

The biggest FCC grant program of 2020 has scrapped the old definition of these terms. This $20.4 billion Rural Digital Opportunity Fund (RDOF) grant program is being made eligible to Census blocks that are “entirely unserved by voice and with broadband speeds of at least 25/3 Mbps”. That seemingly has redefined unserved to now mean 25/3 Mbps or slower broadband – at least for purposes of this federal grant program.

There are also states that have defined the two terms differently. For example, following is the official definition of broadband in Minnesota that is used when awarding broadband grants in the state:

An unserved area is an area of Minnesota in which households or businesses lack access to wire-line broadband service at speeds that meet the FCC threshold of 25 megabits per second download and 3 megabits per second upload. An underserved area is an area of Minnesota in which households or businesses do receive service at or above the FCC threshold but lack access to wire-line broadband service at speeds 100 megabits per second download and 20 megabits per second upload.

It must also be noted that there are states that define slower speeds as unserved. I’m aware of a few state broadband programs that still use 4/1 Mbps or 6/1 Mbps as the definition of unserved.

The main reason to scrap these terms is that they convey the idea that 25/3 Mbps broadband ought to be an acceptable target speeds for building new broadband. Urban America has moved far beyond the kinds of broadband speeds that are being discussed as acceptable for rural broadband. Cable companies now have minimum speeds that vary between 100 Mbps and 200 Mbps. Almost 18% of homes in the US now buy broadband provided over fiber. Cisco says the average achieved broadband speed in 2020 is in the range of 93 Mbps.

The time has come when we all need to refuse to talk about subsidizing broadband infrastructure that is obsolete before it’s constructed. We saw during the recent pandemic that homes need faster upload speeds in order to work or do schoolwork from home. We must refuse to accept new broadband construction that provides a 3 Mbps upload connection when something ten times faster than that would barely be acceptable.

Words have power, and the FCC still frames the national broadband discussions in terms of the ability to provide speeds of 25/3 Mbps. The FCC concentrated on 25/3 Mbps as the primary point of focus in its two recent FCC broadband reports to Congress. By sticking with discussions of 25/3 Mbps, the FCC is able to declare that a lot of the US has acceptable broadband. If the FCC used a more realistic definition of broadband, like the one used in Minnesota, then the many millions of homes that can’t buy 100/20 Mbps broadband would be properly defined as being underserved.

In the last few months, the FCC decided to allow slow technologies into the $16.4 billion RDOF grant program. For example, they’ve opened the door to telcos to bid to provide rural DSL that will supposedly offer 25/3 Mbps speeds. This is after the complete failure in the CAF II program where the big telcos largely failed to bring rural DSL speeds up to a paltry 10/1 Mbps.

It’s time to kill the terms unserved and underserved, and it’s time to stop defining connections of 10/1 Mbps or 25/3 Mbps as broadband. When urban residents can buy broadband with speeds of 100 Mbps or faster, a connection of 25/3 should not be referred to as broadband.

Regulating Cable TV versus OTT

Regulation often makes no sense, particularly in times when technology is transforming an industry. There is no better example of this than the way we regulate cable TV today.

Traditional cable TV is heavily regulated at the federal, state, and local levels. The FCC website has a nice summary of the history of federal cable regulation. The industry is less heavily regulated today than it was forty years ago, but there are still a lot of federal regulations that apply to cable TV. At the local level, franchise taxes levied on cable service are a huge revenue source for local government.

The FCC website includes a definition of cable television as follows: “Cable television is a video delivery service provided by a cable operator to subscribers via a coaxial cable or fiber optics.  Programming delivered without a wire via satellite or other facilities is not “cable television” under the Commission’s definitions.”

All of the federal cable regulations are aimed at cable TV signal that enters the home via a coaxial or fiber wire. Satellite or wireless delivery of television signal is not considered to be traditional cable TV, although the FCC does regulate satellite TV under a different set of rules.

The FCC has chosen to ignore its own definition of cable TV for programming that is delivered over the web. I’ve subscribed to the online cable alternatives Sling TV, Playstation Vue, and YouTube TV. Over time those services have come to look more and more like traditional cable TV. My subscription to Playstation Vue (before it folded) included all of the same local channels that I would receive from a traditional cable subscription. The service included a channel guide, and from a functional perspective, it was impossible to make any meaningful distinction between the Playstation Vue product and the same product I might buy from a cable company.

From a technical perspective it’s hard to see the difference between the online programming and traditional cable. Both come into the home over coaxial or fiber cables. Both offer a line-up of local channels and a similar mix of national programming. Both services offer options like DVR service to record programming to watch later. If you were to show both services to somebody who had never seen TV before, they’d probably not see any difference in the two services.

But there is a huge regulatory difference between traditional cable TV and online programming, particularly at the local level. Franchise fees of up to 5% are levied onto traditional cable TV from Charter, Comcast, or AT&T – but no franchise fees are levied against Sling TV or YouTube TV. Cable companies are arguing that this difference alone gives online programming a competitive edge – and it’s hard to disagree with them.

To make matters even more confusing, there are now cable products that sit somewhere in between traditional TV and online TV. ISPs are no longer building cable headends to download cable signal from satellites. Instead they are buying cable channels wholesale. The entire channel line-up is pumped into an ISP on a big broadband connection. The channel line-ups look a lot like both traditional cable channels and online cable line-ups like YouTube TV. In the newest cable wholesale products the ISP doesn’t even need a traditional setup box and can deliver straight to smart TVs or use something like a Roku stick.

For now, most ISPs that are reselling the wholesale TV are registering as cable providers and are collecting franchise fees. But I won’t be surprised if an ISP challenges this and argues that wholesale cable service is not the same as traditional cable TV.e

From a regulatory perspective, our current treatment of cable service is closely analogous to the difference between traditional telephone service and voice over IP (VoIP). ISPs successful fought to define VoIP as a non-regulated service, although there is no functional difference between the two products at the customer level. There is no discernible difference between a telephone line provided by AT&T over telephone wires and telephone service provided by Comcast over cable wires – but the products get a drastically difference regulatory treatment. It’s hard to think that we aren’t going to soon see legal challenges by cable companies trying to avoid collecting franchise fees – and I think there is a decent chance that courts will side with them.

The FCC Finally Tackles New Mapping

Almost a year after having first approved the concept, the FCC recently started the process of developing new databases and maps. Last August the FCC approved the concept of having ISPs report broadband coverage by polygons, meaning that ISPs would draw lines around areas where they have active broadband customers or areas where ISPs can install a customer within a week of a request for service.

The FCC has been slow-rolling the process for the last year. They made announcements over a year ago that made rural America think that better maps are coming that will make it easier to correctly identify areas that have poor broadband. But last year’s big announcement only adopted the concept of better maps, and the recent vote took the first step towards implementing the concept.

Even now, it’s not clear that the FCC is ready to implement the new maps and the agency is still saying that it doesn’t have the money to change the ISP reporting process. This is hard to believe from an agency that is self-funded by fees and by spectrum auctions – the agency could have required the industry to pay for the new mapping at any time – but the FCC wants a specific allocation of funding from Congress. This feels like another delaying tactic.

There are good reasons for the FCC to not want better mapping. The FCC is required by law to take action to solve any big glaring difference between broadband availability in urban and rural areas. The agency has been doing everything possible over the last decade to not have to take such extraordinary steps.

Everybody involved in rural broadband knows that the current maps are dreadful. ISPs are free to claim broadband coverage and speeds in any manner they want, and from my experience, most rural counties have areas where broadband coverage or speeds are overstated. In many cases the overstatement of broadband is unbelievable. I recently was working with counties in Washington, New Mexico, and Minnesota where the FCC databases show 100% broadband coverage in rural areas when in real life there is almost zero broadband outside of towns.

This same mandate is the primary reason why the FCC doesn’t increase the definition of broadband, which has been set at 25/3 Mbps since 2015. Residents in well over half of the country, in cities and suburbs, have the option to buy broadband of 100 Mbps or faster. But the FCC sticks with the slower definition for rural America so that it doesn’t have to recognize that millions of rural homes, many in county seats in rural counties, don’t have broadband as good as in larger cities.

It is that same requirement to solve poor broadband that has driven the FCC to stick with mapping that FCC Commissioners all admit is inadequate. If the FCC fixes the maps, then many more millions of homes will become properly classified as not having broadband, and the FCC will be required to tackle the problem.

Unfortunately, I don’t hold out a lot of hope for the new broadband mapping process. The biggest reason that today’s mapping doesn’t work is that ISPs are not required to tell the truth. Drawing polygons might decrease some of the areas where the ISPs claim coverage that doesn’t exist – but there is nothing in the new rules that force ISPs to report honest speeds. A rural county is still going to have overstated broadband coverage if ISPs continue to claim imaginary speeds – sometimes amazingly exaggerated. One of the counties I recently was working with has two wireless ISPs that claim countywide coverage of 100 Mbps broadband when it looks like the ISPs don’t operate in the county. The new mapping is not going to fix anything if an ISP can draw false polygons or report imaginary speeds. The new maps aren’t going to stop the exaggeration of rural DSL speeds by the big telcos.

Unfortunately, there are huge negative repercussions for areas where the ISPs lie about broadband coverage. The best example is the current RDOF auction where the FCC is awarding $16.4 billion in grants. None of the areas where ISPs have lied about broadband coverage are included in that grant program and won’t be included in future grants as long as ISPs keep lying about broadband coverage.

Lets not forget that ISPs have motivation for lying to the FCC about broadband coverage. Keeping grants our of rural areas shields the ISPs already operating there and protects rural ISPs that are selling 2 Mbps broadband for $70 per month. If these areas get grants the ISPs lose their customers. The penalties for overstating broadband speeds and coverage ought to be immense. In my mind, if an ISP deprives a rural county from getting broadband grants, then the ISP ought to be liable for the lost grant funding. If the FCC was to assess huge penalties for cheating the maps would be cleaned up overnight without having to switch to the polygons.

As usual, the FCC is pursuing the wrong solution and I suspect they know so. The big problem with the current maps is that ISPs lie about their coverage areas and about the speeds that are being delivered to customers. The FCC has the ability to require truthfulness and to fine ISPs that don’t follow its rules. The FCC could have implemented penalties for false reporting any time in the last decade. Implementing new mapping without implementing penalties for lying is just kicking the can down the road for a few more years so that the FCC won’t have to address the real rural broadband shortfalls in the country.

The Rush to Complete CAF II

I’ve noticed that the big telcos are talking about efforts they are making this year to complete their obligations under the CAF II grant rewards that gave them over $9 billion to improve rural broadband to speeds of at least 10/1 Mbps. The telcos have had six years to make the upgrades and those upgrades must be finished by the end of this year.

It’s easy to understand why the telcos want to finish the required upgrades for which they’ve been paid. The FCC’s Universal Service statutes define the penalties for failure to comply with the mandates of CAF II in 47 CFR § 54.320 – Compliance and Recordkeeping for the High-cost Program.

The rules outline that the FCC can withhold USF payments to the telcos for missing interim deadlines. For example, CenturyLink reported to the FCC at the end of last year that it had not met all of the required upgrade goals that were to be completed by the end of 2019. The FCC should have responded to that notification by withholding some of the 2020 payments to CenturyLink until the company comes into compliance with its obligations. But as long as the telco finished the required upgrades by the end of 2020, it eventually will receive all of the CAF II funding.

But failure to meet the final milestone in 2020 obligations brings harsh penalties. If a telco doesn’t complete the CAF II construction by the end of this year, the FCC is obligated in these rules to recover 1.89 times the amount of subsidy provided to the telco to make the upgrades, plus 10% of the total support provided to a carrier over the term of the program.

The amount of CAF II awards vary by locality, but the average CAF II grants were for between $2,000 and $3,000 per household in the CAF II areas, meaning the penalties would be between $3,800 and $5,700 per household that didn’t see a CAF II upgrade plus 10% of the total support for a given area. That’s a substantial and permanent penalty and it’s no wonder that the telcos are pushing to complete CAF II.

Once a telco has certified that the CAF II upgrades are complete there are other penalties if the upgraded areas don’t deliver the speeds required by the CAF II program – in this case, speeds of at least 10/1 Mbps. Compliance with these rules is verified with FCC-mandated speed tests.

The testing rules are weighted heavily in the ISP’s favor. To keep full funding, a telco must achieve 80% of the expected upland and download speed 80% of the time. This means that the big telcos must only achieve a download speed of 8 Mbps for 80% of customers to meet the CAF standard. The 10/1 Mbps target was low enough, but the FCC testing rules make it a lot easier for ISPs to meet the CAF II obligations. There are financial penalties for ISPs that don’t meet the FCC tests. For example, ISPs that have between 85% and 100% of 80% threshold lose 5% of their FCC support. At the upper extreme, ISPs with less than 55% of the 80% threshold lose 25% of their support.

Consider what these two sets of rules mean for the big telcos. The big penalties come if a telco is honest and tells the FCC that they didn’t complete the CAF II build-out at the end of 2020. In that case, the telco would have to give back more than two times the subsidy it received for each household that doesn’t get upgraded.

However, if a big telcos says they met the buildout requirements, their potential penalty is reduced to 25% of the CAF II subsidy for areas where there were no upgrades. And that penalty assumes that the areas that weren’t upgraded are tested by the FCC. The FCC testing rules allow the telcos to provide inputs on where to test.

I’ve heard a lot of anecdotal evidence that that Frontier and a few other telcos didn’t make some of the needed CAF II upgrades. There are whole counties where recent wide-spread speed testing didn’t find any rural customers getting speeds faster than 5 Mbps download. The telcos still have until the end of this year to complete CAF II, so it’s premature to know that these areas won’t get CAF II upgrades. But if the rumors I’ve been hearing are true, the telcos can falsely declare to the FCC that they made the upgrades and then take their chances during the testing process that the full extent of their cheating won’t be detected.

There are huge parts of rural America that seemingly have been shortchanged by the CAF II program. The sad consequence of this is that these households would have been able to eke by during the COVID-19 crisis if they had been provided with 10/1 Mbps broadband. What I heard from all over the country is that households in the CAF II areas have seen no improvements in DSL over the six years of the CAF II program.

If the FCC really wants to do the right thing it would ask for local feedback at the end of the CAF II program at the end of this year. The FCC can map every household on Google Maps that should have gotten a CAF II upgrade, and there are local officials all over rural America who would love to verify if these upgrades brought anything close to 10/1 Mbps speeds. Instead, I expect the FCC to quietly sweep the whole CAF II topic under the rug, and we’ll likely never hear much about it after the end of this year.

Can the FCC Regulate Social Media?

There has been a lot of talk lately from the White House and Congress about having the FCC regulate online platforms like Facebook, Twitter, and Google. From a regulatory perspective, it’s an interesting question if current law allows for the regulation of these companies. It would be ironic if the FCC somehow tried to regulate Facebook after they went through series of legal gyrations to remove themselves from regulating ISPs for the delivery and sale of broadband – something that is more clearly in their regulatory wheelhouse.

All of the arguments for regulating the web companies centers around Section 230 of the FCC rules. Congress had the nascent Internet companies in mind when the wrote Section 230. The view of Congress was that the newly formed Internet needed to be protected from regulation and interference in order to grow. Congress was right about this at the time and the Internet is possibly the single biggest driver of our current economy. Congress specifically spelled out how web companies should be viewed from a regulatory perspective.

There are two sections of the statute that are most relevant to the question of regulating web companies. The first is Section 230(c)(1), which states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

This section of the law is unambiguous and states that an online platform can’t be held liable for content posted by users. This would hold true regardless of whether a platform allows users free access to say anything or if the platform heavily moderates what can be said. When Congress wrote Section 230 this was the most important part of the statute, because they realized that new web companies would never get off the ground or thrive if they have to constantly respond to lawsuits filed by parties that didn’t like the content posted on their platform.

Web platforms are protected by first amendment rights as publishers if they provide their own content, in exactly the same manner as a newspaper or magazine – but publishers can be sued for violating laws like defamation. But most of the big web platforms don’t create content – they just provide a place for users to publish content. As such, the language cited above completely shields Facebook and Twitter from liability, and also seemingly from regulation.

Another thing that must be considered is the current state of FCC regulation. The courts have given the FCC wide latitude in interpreting its regulatory role. In the latest court ruling that upheld the FCC’s deregulation of broadband and the repeal of net neutrality, the court said that the FCC had the authority to deregulate broadband since the agency could point to Congressional laws that supported that position. However, the court noted that the FCC could just as easily have adopted almost the opposite position, as had been done by the Tom Wheeler FCC, since there was also Congressional language that supports regulating broadband. The court said that an agency like the FCC is only required to find language in Congressional rules that support whatever position they take. Over the years there have been enough conflicting rules from Congress to give the FCC a lot of flexibility in interpreting Congressional intent.

It’s clear that the FCC still has to regulate carriers, which is why landline telephone service is still regulated. In killing Title II regulation, the FCC went through legal gymnastics to declare that broadband is an ‘information service’ and not a carrier service.

Companies like Facebook and Google are clearly also information services. This current FCC would be faced with a huge dilemma if they tried to somehow regulate companies like Facebook or Twitter. To do so would mean declaring that the agency has the authority to regulate information service providers – a claim that would be impossible to make without also reasserting jurisdiction over ISPs and broadband.

The bottom line is that the FCC could assert some limited form of jurisdiction over the web companies. However, the degree to which they could regulate them would be seriously restricted by the language in Section 230(c)(1). And any attempt to regulate the web companies would give major heartburn to FCC lawyers. It would force them to make a 180-degree turn from everything they’ve said and done about regulating broadband since Ajit Pai became Chairman.

The odds are pretty good that this concept will blow over because the FCC is likely to quietly resist any push to regulate web companies if that means they would have to reassert jurisdiction over information service providers. Of course, Congress could resolve this at any time by writing new bills that would explicitly regulate Google without regulating AT&T. But as long as we have a split Congress, that’s never going to happen.

The FCC and Urban Broadband

Chairman Ajit Pai recently said during an interview in Buffalo that he supported what he called Gigabit Opportunity Zones as a way to get fiber built to poor neighborhoods in downtown areas of cities like Buffalo.

The idea of Gigabit Opportunity Zones comes from a bill that was introduced in the last Congress in November of 2019 by Georgia Representative Doug Collins. The bill is H.R. 5082 – the Gigabit Opportunity Act.

The bill would mimic many of the provisions of the Opportunity Zones that were created in the Tax Cuts ad Jobs Act of 2017. That law intended to spur infrastructure investment in low-income Census blocks. The original tax change allowed investors to gain two major tax benefits from investing in qualified infrastructure. They could defer or erase existing capital gains by investing capital gain profits into qualified projects for at least ten years. Investors would also see no capital gains from profits made on an opportunity zone investment.

The proposed broadband bill has similar, but different benefits. First, governors would have to

nominate areas in their state that would be eligible for the gigabit tax breaks. Such areas would have to

  • Face obstacles to economic development due to a lack of geographic broadband coverage or speed;
  • Are the focus of mutually reinforcing state, local, or private economic development initiatives;
  • Are poised for economic growth that requires access to high speed broadband for commercial purposes; and
  • Represent the areas of a state where such service would result in the highest return on investment.

Just like with the existing opportunity zone rules, an investor could defer or eliminate existing capital gains by bringing capital gains proceeds to a new qualified project. Even better than the existing opportunity zones investing, the new project could expense the cost of building the fiber network in the first year, thus realizing a huge capital loss in the first year (which is a great way to wipe out capital gains).

It doesn’t look like the bill has moved forward since introduction beyond being referred to the Subcommittee on Communications and Technology. The purpose of the blog is not to say anything negative about the bill. It would be great if something like this would help spur building fiber to urban neighborhoods that might otherwise never see fiber. It does seem to me that the provisions that a qualified investment must result in the highest return on investment makes it likely that this would benefit the richest neighborhoods rather than the poorest. But those kinds of details get worked out during the legislative process.

What I found a bit disturbing is that this bill was brought up in response to the question of what the FCC could do for cities like Buffalo. The Chairman offered the following responses to the question:

  • He said the FCC had expanded the opportunity for people to qualify for the Lifeline program. From what I can see, this FCC has done the exact opposite and would like nothing better than to eliminate this part of the Universal Service Fund.
  • He mentioned E-Rate programs to bring better broadband to schools and libraries. The FCC did make it a bit easier for schools to turn that broadband outward to the parking lots during the pandemic, but otherwise this FCC hasn’t improved the E-Rate program.
  • Chairman Pai said he had asked Congress for the authority to provide hotspots to poor urban neighborhoods, but that Congress hasn’t given him that authority. This highlights that the FCC gave away their authority over broadband and now has no authority to do things like promote hotspots.
  • He mentioned the RDOF grant process as one that is bringing broadband to those that need it, without mentioning that the ‘R’ in RDOF stands for rural – none of that money is going to Buffalo.
  • He mentioned regulatory reform. By that, he is sticking with his story that deregulating the big ISPs will result in more investment in places like Buffalo. From what I can see, none of the big ISPs have responded to ‘light-touch’ regulation by building fiber to poor neighborhoods.
  • Finally, he cited the Gigabit Opportunity Zone legislation. That’s a stalled piece of legislation that might bring benefits, but which has nothing to do with the FCC.

The Chairman’s response should have been that the FCC is not seriously looking at solving the digital divides in cities. The FCC has done its best to write itself out of the broadband picture. The FCC still must administer the Universal Service Fund because it has no choice. The FCC Chairman is sticking to the pure fiction that the big ISPs will solve the broadband problems of the world in response to being deregulated. But in reality, the FCC is doing almost nothing for urban broadband and has no intentions of doing so.

Where is Net Neutrality When we Need it?

Just in the last two weeks two stories hit the press that highlight behavior from ISPs that would have likely have violated the Net Neutrality rules that were killed by Ajit Pai’s FCC. The big ISPs have been surprisingly quiet and have not loudly violated those rules, even though they are no longer in effect. The industry speculation is that the big ISPs are treading lightly because they don’t want to trigger a regulatory overreaction should there be a chance of party in the administration or Congress.

The first headline says that AT&T is excluding HBO max from the calculation of any data caps. This is a big deal for AT&T cellular customers and not insignificant for AT&T landline broadband customers that face data caps.

AT&T defends this by referring to other ‘sponsored data plans’ in the industry, like the one offered by T-Mobile that lets premium customers exclude usage from YouTube, Netflix, Hulu, HBO, Sling YV, ESPN, Showtime, Starz and other sources of video.

I don’t know enough to know if T-Mobile is violating the old net neutrality rules. Net neutrality rules would allow an ISP to exempt all video from data caps and would not violate any rules because the ISP wouldn’t be discriminating against any particular source of video. However, if T-Mobile is being paid by those companies to exclude their data from data caps, then T-Mobile would also be violating the spirit of net neutrality. AT&T’s exclusion of HBO Max from data caps is more blatant since AT&T owns HBO – the policy is clearly being made to benefit HBO over Disney, Netflix or other competitors of HBO.

It was easy to predict that sponsored data is something that carriers would be pushing the envelope on, even if net neutrality was still in effect. It’s something that customers like, and so it’s hard to fire the public up that sponsored data is bad for the industry. But it is. AT&T is clearly disadvantaging other video services in favor of their own. If T-Mobile doesn’t exclude all video from data caps they are doing the same thing – just not to advantage their own video product. The original FCC net neutrality order pointed out that sponsored data can make it hard for a new market entrant, and they could be right – we don’t see a lot of new names of companies that stream video.

The second headline is one that broadband customers everywhere will hate. Jon Brodkin in arstechnica describes a situation where Cox is slowing down the upload path to a customer for using too much broadband – and even worse is openly admitting to capping the upload speeds for an entire neighborhood.

I won’t recount all of the details of the story. In a nutshell, there is a customer that is backing up huge amounts of data each night from midnight until 8:00 am. It takes that long to complete the backup because the upload speed available to the customer is only 35 Mbps. If this customer was on symmetrical fiber this backup could be done quickly. Apparently, this customer has been doing the same thing for years, but they have recently been notified by Cox that they need to stop the practice or be kicked from the network. Cox also threatened by cut the upload bandwidth available to the whole neighborhood.

This particular customer uses over 8 terabytes of data per month, which is an extraordinary amount of usage on a home broadband line. But if the usage is all really late at night, it’s unlikely that this is very disruptive to the neighborhood.

What’s extraordinary about this is that the customer doesn’t seem to be violating the Cox terms or service. The customers is already paying extra to avoid the data cap to get unlimited data. Cox is basically saying to the customer that there is some secret usage threshold that they associate with ‘unlimited’ data – yet they won’t give the customer a targeted usage threshold.

Where Cox really crosses the line is when they threaten to penalize an entire neighborhood for using too much data. According to Brodkin this one customer is not the only example of this same behavior by Cox.

If we had an FCC that regulated broadband they would likely slap Cox for this behavior. What’s odd is that Cox doesn’t have to be so arbitrary. They could easily have established rules in the terms of service and their products that could have legally handled this situation. Instead, the sold unlimited data and decided afterwards that there really is a limit on the amount of data they are willing to provide. The fault for this situation seems to lie mostly in the legal department at Cox rather then with the customer who has had the same usage for years.

ISPs ought to realize that the regulatory pendulum always swings the other way. Ajit Pai has completely deregulated one of the largest industries in the country that touches almost everybody. That pushes the regulatory pendulum as far as it can go towards the ‘unregulated’ side, and it’s inevitable that a future Congress or FCC is going to bring back regulation again at some point. When they do, all of the bad behavior by ISPs during this time of deregulation will be used as examples of why regulation is necessary. If the ISPs push the envelope too far they regulatory pendulum will swing a lot further in the regulated direction than they are going to like.