Missed by BEAD

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

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

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

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

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

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

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

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

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

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

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

Technology Neutral

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

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

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

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

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

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

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

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

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

Cox Wins DMCA Case

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

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

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

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

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

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

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

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

Big ISPs and Speeds

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

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

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

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

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

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

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

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

AT&T Raises Rates

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

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

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

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

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

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

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

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

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

Where is Congress?

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

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

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

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

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

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

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

Simplifying the Broadband Labels

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

The Rulemaking is specifically recommending to eliminate the following requirements:

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

The Rulemaking also seeks comments on several issues:

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

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

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

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

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

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

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

Are Spectrum Licenses Property?

There is an interesting lawsuit in the U.S Court of Appeals for the case of Ligado Networks, LLC v. United States.  Ligado Networks filed a suit that alleges that the U.S. government unlawfully took its licensed spectrum without due compensation in favor of use by the Department of Defense. The spectrum involved in the suit is L-band spectrum, which sits next to spectrum actively used by DoD for GPS.

The government is arguing in the case that it has the right to take back spectrum when it’s needed for defense purposes. The government is arguing that Ligado doesn’t have a relevant property interest in the spectrum.

For some background, Ligado was granted the spectrum in 2020 by the FCC to use for a satellite-based 5G cellular network. The DoD opposed that license award at the time, and after the FCC awarded the spectrum, the DoD effectively cancelled the Ligado use of the spectrum in opposition to what the FCC had recently ordered. Ligado declared Chapter 11 bankruptcy in January 2025, citing the loss of the spectrum that would have been the basis for its business.

Ligado is arguing that what the government is doing is a taking, and that the government could claim any spectrum without compensating the spectrum owner.

USTelecom wrote a brief in the case in support of Ligado Networks. USTelecom argues that its members spend billions of dollars to buy spectrum, and billions more to build networks that use the spectrum. They argue that the government’s actions in this case undermine the ability of carriers to rely on spectrum, which will dampen the willingness to spend a lot of money for spectrum that could be taken away at any time.

The suit should be of interest to WISPs since there is a possibility that the FCC could reclaim CMRS spectrum to meet the Congressional mandate to to find more spectrum for  cellular auctions. The WISP industry has been working hard to protect that spectrum, but this case has to make them nervous.

USTelecom further argues that the government could use the same logic to argue that it could take back rights-of-way or other uses of public lands. In case that sounds far-fetched, the Supreme Court of Georgia recently ruled that local governments can withdraw contracts that granted rights-of-way, by relying on an argument that no contract can last forever, with no end date. The Georgia rights-of-way will likely be renegotiated. But the principle is bad news for telcos, cable companies, electric companies, wireless companies, and the many businesses that rely on maintaining rights-of-way to support long-term infrastructure. The same logic can hold for public lands.

A judge ruled in November that the Ligado suit can continue to examine the issue of whether spectrum licenses are property. This is a suit worth keeping an eye on.

Digital Opportunity in Action

I recently attended a wonderful event sponsored by the Blue Ridge Broadband Alliance. The Alliance is headquartered in Asheville and is focused on improving broadband in the many rural counties in Western North Carolina. The Alliance is being led by Sara Nichols with help from two great sponsors – The Benton Institute and the Dogwood Health Trust’s Digital Opportunity Initiative.

The event I attended was a Digital Opportunity Pitch Party where four local groups made a pitch to the crowd and to a great panel of judges to vie for funding to support their digital opportunity efforts. The four organization that made pitches were AB Tech, OurJourney, Swift App School, and Through the Trees in 828. All four pitches highlighted great local efforts to assist people in the region with digital assistance. All four groups won an award that ranged from $1,000 to $4,000.

The overall winner was OurJourney. This is a non-profit organization whose founders were originally incarcerated in North Carolina, who now have a mission to support those who are returning from incarceration with their reentry journey.

OurJourney has created a reentry kit. The kit includes a booklet called What to Expect: Your First Days Free along with a package of information tailored for each County in North Carolina. The package advises those in reentry on a wide range of issues like finding a job and transitional housing. The package includes contact information for agencies, organizations, faith- based ministries, and businesses that provide services for those who are returning from prison. Also included is a handbook from the DMV on how to renew a driver’s license, a t-shirt, and a gift-card for two meals.

You might wonder what this has to do with digital equity. Each reentry kit includes a Samsung smartphone and three months of pre-paid service. OurJourney has also created  a phone app that provides a wide range of  assistance.

One important service from OurJourney is a tutorial on to use a cellphone, something that is going to be unfamiliar for anybody who has been incarcerated for a number of years. It’s easy for the average person to think that using a cellphone is natural and intuitive, but it involves a number of digital skill that we all learned over many years. For somebody who has never used the Internet or a smartphone, simple tasks like web searching, banking, or shopping can be overwhelming. OurJourney also has a help desk that offers one-on-one training and is available to answer questions.

What’s most impressive about OurJourney is that they know, after a few years of doing this, that what they are doing works. They are already seeing that people who get their assistance have a far lower recidivism rate than for others coming out of incarceration Prison officials and County officials strongly support and recommend the program to those coming out of incarceration.

The specific pitch that OurJourney made to the Blue Ridge Broadband Alliance was help to fund the creation of a program for women since they previously have only supported men. Women reentering society have different needs and concerns than men.

People often tell me that they don’t fully understand what digital opportunity training really does. OurJourney is one of many examples from around the country of local organizations and programs that are helping those who most need the help to navigate the digital world. They are doing it in the only way that really works by helping people one-on-one.