Tag: BEAD Grants

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Regulation - What is it Good For?

FWA Cellular Speeds

One of the most interesting things about getting access to a lot of speed tests is that it provides a way to test broadband issues you always suspected but couldn’t prove. If you can collect enough speed tests, you might find proof of a lot of different things. For example, speed tests might show that a broadband network is slower in the evening than during the night – something that customers have always complained about. Speed tests might show that an ISP delivers speeds that are far slower than what an ISP claims on the FCC broadband maps.

I’ve been trying to understand the speed characteristics of FWA cellular wireless. I’ve been interviewing folks for a few years who have FWA wireless, and they all told me that speeds are fast for those living close to a tower but slower as the distance to the tower increases. For example, the first customer I talked to who was using the FWA broadband from T-Mobile is a farmer who had a T-Mobile tower on his property and got almost 300 Mbps download speeds. He was thrilled with the product compared to the much slower WISP he had been using. But when he recommended the FWA wireless to his neighbors, they received a far different bandwidth product. A neighboring farm a little over a mile away was getting speeds closer to 100 Mbps, which they also thought was good. But some farms further away said that the FWA broadband was too slow.

I heard similar stories from elsewhere, but it’s hard to make any universal statements about the FWA product based on a handful of anecdotes from different parts of the country. I recently got access to enough speed tests to understand the performance of the FWA cellular wireless product.

The map below shows a lot of speed tests from Verizon tower in a suburban county. The yellow dots on the map are the locations of actual speed tests. The colored circles on the map show the distance from a cell tower – with purple showing locations within a mile of the tower, red showing locations between 1 and 2 miles, blue/greed showing speed tests within 2 and 3 miles, and the surrounding white areas at more than 3 miles. I didn’t cherry-pick this particular tower as the best example – there are more than a dozen other Verizon towers in the same county that show similar speed test results. I must note that speed tests are not a prefect indicator of broadband performance, and there might be explanations behind some of the slower readings. But I have to think that seeing this same speed pattern around multiple tower sites is a good indication that this is how the technology works.

This map demonstrates what the farmer told me to a tee. There are some locations close to the tower getting 300 Mbps. Customers just over a mile from the tower are getting slower speeds, with the highlighted ones around 75 Mbps. By the third mile band, speeds have dropped a lot closer to 25 Mbps download, and outside the three-mile circle, speeds drop significantly. There is no easy way to tell if the customers with slower speeds are buying FWA wireless, which uses the spectrum that Verizon labels as 5G, or the older Verizon hotspots that use traditional LTE spectrum.

On the FCC map in this county, Verizon reports two speeds – 300 Mbps or 50 Mbps. It’s not easy to understand how Verizon makes the distinction, but it seems like locations for a fairly good distance around towers are claimed at 300 Mbps.

Somebody who doesn’t understand the FCC mapping rules might think that Verizon is breaking the rules by reporting 300 Mbps speeds in places where actual speeds are a lot lower. But the FCC allows ISPs to report marketing speeds for the FCC maps as long as Verizon is advertising the claimed speeds. But that doesn’t mean that the Verizon FCC reporting is ethical. Customers who might refer to the FCC map when looking for an ISP, or customers that see Verizon advertising are hoping to get something close to the 300 Mbps speed – and many will not.

I have some major concerns about cellular FWA technology related to the upcoming BEAD grants. First, any state broadband grant offices that accept the claimed Verizon speeds in the FCC mapping might not award any grants where a fast FWA speed is claimed. That would be a travesty if folks who can’t get speeds of at least 100/20 Mbps with FWA are denied another broadband option.

It’s also possible that the cellular companies will challenge grants that come close to their towers. I knew this was likely going to become an issue the day that the NTIA said that it considers wireless broadband using licensed spectrum to be broadband for purposes of the BEAD program.

It’s also possible that Verizon, T-Mobile, AT&T, and others will try to win BEAD grant funding using this technology. At least in this county, there are very few customers outside of one or two miles from a tower who can get the 100/20 Mbps required for BEAD grants.

I hope that state broadband offices take a hard look at this. Many of them have purchased detailed speed test data, and they can search around towers in the same manner done above. I don’t think it will take much investigation for them to be convinced that FWA cellular broadband can meet the speeds required for BEAD – but only for short distances from cell towers. Broadband offices should also take note that both Verizon and T-Mobile warn customers that speeds can be throttled any time there is increased demand for bandwidth from cellphones.

I am not busting on the cellular FWA technology. If I was in a rural area without a good broadband alternative, I’d buy this product in a second. But I’d be unhappy if I was hoping for 300 Mbps and got 25 Mbps. What is being deployed today is the first generation of the technology, and I assume that it will improve over time. My only concern is the timing of the rollout of this new technology and how it might negatively affect an already complicated BEAD grant process.

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Regulation - What is it Good For?

Revisiting the BEAD Letter of Credit

I recently agreed to sign a letter to the NTIA that asks the agency to eliminate the BEAD requirement that grant recipients must have an irrevocable standby letter of credit (LOC) to apply for a BEAD grant. This letter was signed by over 300 folks in the industry including ISPs, local government, policy experts, and industry associations. I sign very few documents like this, but the letter of credit requirement is a terrible policy – and is a big concern to many of my clients.

To explain an irrevocable letter of credit in plain English, anybody winning a BEAD grant must set aside almost the same amount of cash as the amount of grant matching from the day that the grant is awarded through the completion of the grant construction process.

A letter of credit to satisfy the NTIA must come from an FDIC bank with Weiss rating of B- or better for 25% of the award amount. A letter of credit is a specific kind of negotiable instrument where a bank guarantees that the bank will fund any shortfalls if a grant fails in its financial obligation. If a grant applicant fails to complete the construction of the grant, the money in the LOC would likely be claimed by NTIA or the state grant office (still unclear on the details).

Banks will not issue a letter of credit without having liquid assets or collateral equal to the amount of the LOC. That means a grant applicant must not only have enough cash or borrowing for its grant matching fund commitment, but the applicant must also set aside a large amount of hard cash as a guarantee for the LOC. The letter to the NTIA uses an example of an ISP that want to fund a $10 million project using a 75% BEAD grant. In this example, the ISP would get $7.5 million from the grant. It would need to have $2.5 million available for the matching fund. It would need to set lock up another $2.1 million for the letter of credit. That makes it incredibly expensive for an ISP to seek a BEAD grant. And FYI, this example is too conservative – grant recipients also must finance the operating costs of launching a grant project since those expenses are not covered by grants.

To make matters even worse, banks charge interest on a letter of credit because the bank must set aside a corresponding portion of its own equity to support the letter of credit. The cashed tied up by a bank for an LOC can’t be used to make other loans – so the bank must charge interest.

This is a huge problem for many reasons. Anybody but the largest ISPs will have a hard or impossible time getting a letter of credit. Most ISPs don’t accumulate cash because the best use of cash for most ISPs is to continue to build more infrastructure. A large percentage of ISPs will not have the cash available up front to support the letter of credit. Many cities and municipalities are legally barred from buying a letter of credit.

There is some question if the banking industry as a whole is willing to float over $10 billion in letters of credit for BEAD grants. The banking industry is under a huge amount of stress due to high interest rates. Banks are far less interested in making any kind of infrastructure loans today when interest rates are high – because the bank’s risk is much higher than normal. I know ISPs that have been told by their current bank that they are not interested in issuing a letter of credit – and the chance of getting a LOC from a bank that doesn’t know an ISP is slim.

There is no reason for this requirement – or at least no reason for it to be so draconian. The NTIA is insisting on a letter of credit because it doesn’t want to be embarrassed by projects that don’t get completed. This requirement is a massive advantage for large ISPs over smaller ones, but even large ISPs hate this requirement. There are many successful broadband grant programs that don’t require a draconian letter of credit. There are other ways to provide assurance to a state grant office, like performance bonds or issuing grant funds in tranches as milestones are met.

Hopefully, the press from this letter will get the NTIA to reconsider its position. The requirement for the extreme version of a letter of credit is overkill. The letter of credit is going to stop a lot of ISPs from being able to ask for BEAD funds – the local ISPs that customers prefer. Maybe most germane is that requiring a letter of credit might actually drive more projects to fail as ISPs struggle to support the interest payments on an LOC.

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Regulation - What is it Good For?

One More Mapping Challenge

There is still one more upcoming map challenge to try to fix errors in broadband maps for purposes of the upcoming BEAD grants.

The NTIA is requiring state broadband offices to have one more mapping challenge at the state level before the state can issue broadband grants. The NTIA issued a sample template for a state challenge process, but each state is allowed to develop its own challenge process. States are not required to wait for an update in the FCC mapping system before using any updated information when awarding grants.

The NTIA suggests that challenges can be made by ISPs who are considering asking for a BEAD grant. NTIA also suggests that states accept challenges from the public, and I assume that includes challenges from cities and counties as well.

This is the challenge that a lot of folks have been waiting for because there are still a lot of inaccuracies in the FCC maps. While some states did a vigorous review of the FCC maps and asked for map updates – many states did not. Some counties also put an effort into correcting the FCC maps – but many did not. This is the final chance to get locations declared as eligible for BEAD grants. I assume that States will not accept locations for BEAD grants that are not in the corrected maps.

This challenge is also the one that folks have been waiting for since the NTIA suggests that there can be a challenge against the claimed broadband speeds. A lot of the early map challenges had to do with getting the mapping fabric right – which is the database that is used to define the location of the homes and businesses in the country.

My consulting firm has been working with communities, and we are still seeing a lot of inaccurate information. In every county we have examined, we find ISPs claiming speeds of 100/20 Mbps or faster that are not supported by Ookla speed tests. We’re also finding coverage errors in the maps where ISPs are reporting homes as covered that are not. A lot of the earlier challenges fixed coverage problems that were grossly incorrect, but it takes a lot more effort to find smaller pockets of ten or twenty homes that can’t buy good broadband but for which some ISP claims coverage.

Many of the problems in the FCC maps are directly due to the FCC rules for ISPs to report broadband for the maps. ISPs are allowed to claim marketing speeds for broadband instead of the actual speed delivered. There are far too many cases where the advertised marketing speed is much faster than what is being delivered. ISPs can also claim areas as covered by broadband where the ISP can supposedly provide broadband in ten working days. Finally, we often find ISPs claiming broadband coverage where an engineering field review doesn’t find any of the claimed technology.

The mapping is only an issue for BEAD because the IIJA legislation that created the BEAD grants insisted that FCC mapping must be used to allocate grants. I’m sure that language was inserted into the legislation at the insistence of the big ISP lobbyists to make sure that grant funds were not used to ‘overbuild’ existing broadband. At the time the IIJA legislation was passed, the FCC maps were atrocious. They have now been improved to the point where I would say they are now merely dreadful – but nobody believes the FCC maps are accurate. Most people only have to look around their immediate neighborhood on the FCC maps to find a few overstatements of coverage. My team has looked in great detail at perhaps a dozen counties and found a lot of mapping errors. I can’t even begin to think what that means on a national scale.

Unfortunately, most people in the country have no idea how this complicated BEAD process works. After the grants have been awarded, I expect we’ll start to hear from unserved homes that are not going to be covered by a BEAD grant. I believe this is going to be a lot more homes than anybody at the NTIA, the FCC, or state broadband offices wants to acknowledge.

Hopefully, the ISPs who want to file BEAD grants will take a shot at cleaning up the map errors now. That’s the only way to get grant funding for locations that are underserved but which don’t show that on the FCC maps. Everybody interested in doing this needs to pay attention to the state broadband office. States will first issue a plan to the FCC describing the way it will conduct the mapping challenge. These plans will likely have a 30-day opportunity for public comments. If you don’t like the map challenge rules, holler! Sometime later, states will hold the mapping challenge, and most will likely have a narrow time window to file challenges.

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Regulation - What is it Good For?

Defining Affordable Broadband

One of the requirements for the $42.5 billion BEAD grants that come directly from the Infrastructure Investment and Jobs Act legislation is that broadband should be affordable for middle-class families. The specific legislative requirement is that, “High-quality broadband services are available to all middle-class families . . . at reasonable prices.” The NTIA that oversees the BEAD grants has not defined a benchmark for an affordable middle-class price, so State broadband offices are on their own to decide how to handle this requirement.

Pew Charitable Trusts took a shot at defining affordable middle-class broadband in a recent study. Pew based affordability upon an FCC study in 2016 that concluded that the average middle-class family can afford to pay as much as 2% of household income on broadband. Pew is not recommending that States automatically adopt the 2% definition – instead, they looked at how that benchmark would be calculated in various parts of the country.

Pew defined middle-class household incomes to be between $40,000 and $150,000 annually. That’s a somewhat simplistic assumption in that the definition of middle-class also depends on the number of family members. Pew found that between 51% (in the South) and 57% (in the Midwest) of households are classified as middle-class using that income range.

Household incomes vary significantly across the country – but so does the cost of living. The Pew article calculates the monthly affordable broadband rate set at 2% of average middle-class incomes for both states and regions. The results are interesting. The highest affordable rate using the 2% definition is in the Northeast at $107.65 per month. In the South, the rate would be $84.79. The national average affordable rate set at 2% is $93.21. States vary even more widely – the highest affordable rate at the 2% benchmark is in Rhode Island at $150.73 per month, and is lowest in Mississippi at $68.53.

One of the reasons that Pew doesn’t like the FCC’s 2% definition is that there are a lot of middle-class homes that can’t afford the rate that would be established for their state or region. For example, 28% of middle-class homes in the Northeast that are considered to be middle-class could not afford the $107.65 rate.

Pew shows that States have another challenge in trying to meet this grant requirement. States have no good data on existing rates for broadband. ISPs have a wide array of ways that they price broadband that includes offering special rates to some customers for term contracts, burying broadband rates in a bundle so that nobody knows what broadband costs, and adding hidden fees like an expensive modem in order to buy broadband. It’s hard to set a benchmark rate for broadband when it’s nearly impossible to define what the public is paying today for broadband.

The big question is how States might use an affordable middle-class rate. Federal, state, and local governments have no regulatory authority to set or approve broadband rates. The FCC theoretically had this ability until the Ajit Pai FCC eliminated Title II regulatory authority over broadband. However, no past FCC ever considered regulating broadband rates, even when they had the authority.

This raises the question of what a States might do once it determines an affordable middle-class rate. A broadband office can’t require that ISPs have rates under any benchmark it establishes. It even seems problematic if a broadband office uses prices as one of the criteria for awarding grants.

The first day I read the BEAD grant legislation, I knew that middle-class affordability requirement was going to be a challenge. I’m not sure there is a good answer for how a State can do this, and I’m sure they are all still puzzled.

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Regulation - What is it Good For?

The Power of a Letter of Support

The newly released Virginia proposed BEAD grant rules highlight an issue that was included in the original grant rules. The BEAD grants give significant power to local governments through local letters of support.

ISPs have always asked for letters of support for broadband grants, and most communities have handed them out like Halloween candy. There was no reason not to support anybody who wanted to build better broadband, so a community would reflexively give a letter of support to most ISPs who asked for one.

The BEAD grants are different, and communities need to carefully weigh giving letters of support. The Virginia BEAD grants rules – and I think most other states as well – are going to award a significant amount of grant scoring points for an ISP that gets a local letter of support. In the Virginia grant scoring, a letter of support represents 10% of the total points needed for an ISP trying to win a grant.

Since most BEAD grants are going to be awarded in rural areas, County governments are the local government entities that will matter the most for BEAD. A County needs to carefully think about the ISPs it want to support – if the County provides a local support letter for only one ISP, that ISP has an instant advantage over other ISPs in the grant scoring.

If a County gives every ISP a support letter, it’s the same as if you endorsed nobody because all ISPs will score the same in the BEAD grant scoring.

I’ve been working with counties all over the country, and many of them have a strong preference for who wins the grant funding. For instance, a County might have a strong preference for supporting fiber over wireless technology. A County might prefer to support local ISPs over large ones, or support a large ISP already operating in the County over a newcomer. Counties often have a strong preference, and the letter of support is a way to express these wishes.

The Virginia BEAD grant rules are also interesting because the State gives grant scoring points to ISPs that visit with local governments and explain who they are and their plans. There is no guarantee that other states will have the same requirement, but it’s a good one. If a County is going to decide which ISPs you want to support, you need to meet and hear from them. ISPs pursuing BEAD grants will differ in important ways. Technology differences are one obvious way, but there are many others. Counties care a lot about broadband prices and might strongly prefer an ISP that promises low rates. A County might care about issues like the location of technicians and customer service – will there be jobs created in the County?

If a County government wants to use the letter of credit to its best advantage, the County will have to choose the ISP or ISPs you are willing to support. Even if ISPs are not required to visit you, like in the Virginia rules, you are going to want to talk with them. In the past, I’ve seen ISPs ask for letters of support a week before grants are due – that is not going to cut it if the letter of support means something.

The bottom line is that BEAD grant rules are giving a County a power it never had before – a chance to influence who wins broadband grants. This is the equivalent of a County voting for the ISP it wants to win the grant – the County will be helping to pick winners and losers.

The one downside to the process is that it won’t be particularly comfortable for a County to tell some ISPs they won’t get a support letter. But if a County has a strong preference about who will provide broadband for the next fifty years, it should exercise this power.

Counties need to read the State broadband grant rules when they are published to understand the importance of the letter of support. A County has power if the grant scoring rules award points to an ISP for having a local letter of support.

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Regulation - What is it Good For?

Virginia’s Proposed BEAD Grant Rules

Virginia just published its draft BEAD proposal that defines how the state plans to make BEAD grant awards. Virginia will be awarding almost $1.5 billion in BEAD grants using these rules. The plan is still a draft. Next is a public comment period on the proposed rules, and the final draft of the plan will have to be approved by the NTIA. But even as a draft, this is my first real peek into how the BEAD grants might happen. Note that each state is a distinct plan, and some of the features in the Virginia rules might not be in other state plans. This summary is from my first quick reading of the Virginia plan, so forgive me if I missed important nuances.

Following are some of the most interesting things about the Virginia plan:

  • Virginia plans to ‘deconflict’ multiple grants that ask to serve the same geographic area by requiring all grant applicants to file a pre-application that defines the areas they plan to serve. This will allow the state to determine distinct application areas before the full grants are due. The plan discusses a secondary process to find ISPs to serve areas where nobody has asked for grant funding.
  • Virginia plans to post everything filed by ISPs online. One of the biggest complaints about many past grants is that the process was done behind closed doors. It looks like Virginia is going to make everything available to the public. It will be interesting to see if they will allow for things like financial information to be kept confidential.
  • Virginia has a goal of awarding all of its BEAD money in 2024. I read this to mean that there will be only two grant steps – every applicant will file a pre-application with maps, and once the State has digested the maps, ISPs file the full application – this means one big grant round for everybody at the same time.
  • I think folks are going to be intrigued by the grant scoring. It’s different than any other grant I can recall. Virginia has two slightly different scoring plans, and here is the first one:
    • 45% for Program Outlay. This is essentially a one-round reverse auction. If more than one ISP asks to serve the same area, the ISP with the lowest cost per passing will get the full 45 points, and other applicants will get fewer points based on how much more they are requesting from the grant program. This has to be a concern for anybody who is thinking of asking for a full 75% grant.
    • 20% for Affordability. This is going to be based on the proposed price for a symmetrical gigabit of service. To get points, the price must be at or below $100. Prices are compared between applicants asking to serve the same area.
    • 10% for Fair Labor Practices. This will be based on the history and the proposed commitment to compliance with Federal labor and employment laws.
    • 5% for Speed of Deployment. Timelines for construction will be compared after accounting for delays such as complying with things like environmental studies.
    • 10% for a Local Consulting Meeting. An ISP must meet with local or tribal governments to explain its qualifications and plans for deploying BEAD.
    • 10% for Local Letter of Support. This requirement gives a lot of power to local governments. A government that only supports one ISP gives that applicant a big boost in grant scoring
  • All of the other BEAD requirements are not part of the scoring. Instead, it seems there will be a checklist of mandatory requirements. This includes a long list of BEAD requirements like environmental studies, extremely high-cost area plans, the technology being used, the letter of credit, the history and capability of the ISP, binding commitments from labor, credentialed workforce, affirmative action for vendors, climate plan, middle-class rate plan, cybersecurity, supply chain management, etc.

Since it’s hard to imagine an applicant not holding the local meetings, the rest of the scoring is a 90-point scale. Half of the grant scoring comes from the willingness to take the lowest level of grant funding. The next important is affordable rates. The local letter of recommendation takes on a high importance.

Since everything is going to be published and transparent, Virginia’s scoring plan seems to eliminate almost all discretion from the state grant office in choosing winners. I read this scoring to say that whoever gets the most points in a given grant area will win the grant.

It’s impossible to tell with these high-level rules how scoring will account for differences between ISPs. For example, how will these rules account for technologies that deliver different speeds? I assume before grants are due that the scoring will be explained in more detail.

These rules also open other big questions. Will there be a chance for a local community to prove that the FCC maps are still wrong, or will grant applicants be limited to asking for grants for areas shown as unserved and underserved on the latest FCC map?

In closing, note again that these are the proposed rules for Virginia – but no other state. Other states might use a totally different philosophy for scoring. I know there are states that are considering multiple rounds of grant applications. These rules are also a draft and could change in Virginia before they are final. But this is one view of how the BEAD grants will work – and it’s totally different than what I expected.

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Regulation - What is it Good For?

Who’s In Charge of Broadband?

On July 24, the FCC authorized a new subsidy program, Enhanced A-CAM (Alternate Connect America Cost Model). This program will extend subsidies to small, regulated telephone companies at a cost of about $1.27 billion per year for ten years. The subsidy will be paid from the FCC’s Universal Service Fund.

The funding requires recipients to deploy voice plus broadband with speeds of at least 100/20 Mbps to 100% of the areas covered by the subsidy within four years. The order is technology neutral, so telcos could elect to meet this requirement with fiber or with licensed fixed wireless technology.

According to Mike Conlow, this order will bring broadband to almost 583,000 unserved or underserved locations that are already covered by the NTIA’s BEAD grant footprint. Today’s blog talks about the absurdity of the FCC making this announcement only weeks after the NTIA announced the distribution of the $42.5 billion in BEAD funds to states. This means that two U.S. agencies both announced funding to cover the identical half-million locations within a month of each other.

Think about what this means. A state that has some of these A-CAM locations was allocated BEAD grant money to bring broadband to these areas. The FCC order is then directly funding to build broadband to the same passings. This means that a state that has a lot of unserved and underserved A-CAM passings is getting a funding windfall. Conlow estimated that this double funding is bringing a funding windfall of $180 million to Nebraska – the state with the most unserved and underserved A-CAM locations. The downside of this is that if Nebraska and other states are getting a windfall from the FCC decision, then other states are receiving less BEAD funding than they would have if these locations had been excluded from BEAD before the NTIA allocated the $42.5 billion.

The FCC’s A-CAM order was released only three weeks after the NTIA announced the BEAD allocations to states. There is no way that the FCC didn’t do this deliberately. The FCC could have asked the NTIA to take these locations out of the BEAD process so that the $42.5 billion would have been allocated fairly.

Two years ago, the Biden administration directed the FCC, the NTIA, and the USDA to coordinate everything associated with federal funding for broadband. The FCC’s actions with this decision are the exact opposite of coordination.

I speculate that the FCC did this to reclaim relevance in the discussion of who is helping America solve the rural broadband gap. The FCC has taken a lot of criticism in recent years for botching the RDOF funding process and handing out wasted billions to the big telcos in the CAF II subsidies. The FCC was also largely cut out of the biggest effort ever with BEAD grants to solve the rural broadband gap, and that had to sting. The FCC can now say to the folks living in the A-CAM areas that it provided the funding to bring better broadband instead of the NTIA. I’m picturing FCC ribbon cuttings for projects that launch fiber in these areas. I can’t think of any other reason that this order would have been released so soon after the NTIA announcements of BEAD funding for each state.

The NTIA should react to this announcement by reallocating the BEAD funding to states because for every state that got a windfall like Nebraska from the FCC’s A-CAM order, other states received less BEAD funding. Unfortunately, reopening the allocation process could open a can of worms, so that likely won’t happen.

In my mind, the FCC has become a loose cannon due to its control of the Universal Service Fund. The USF for all practical purposes is a big slush fund that gives the FCC the ability to tackle anything it wants, outside of any control by Congress or the White House. After this announcement, it wouldn’t shock me to see the FCC announce another round of RDOF funding in the middle of the BEAD grant process next year.

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Regulation - What is it Good For?

Grant Funds are Still Taxable

In October 2022, I wrote a blog about a bipartisan attempt to exempt broadband grant funding from being taxable income. Unfortunately, Congress has still not moved this legislation forward. Any company pursuing any federal, and most state grants need to be aware of the tax implications.

In 2022 there was an attempt to push this through during the lame-duck session between the old and new Congress being seated. When that failed, there was a bipartisan bill introduced in both the House and Senate in February 2023, and those bills are still languishing.

On the House side, Representatives Jimmy Panetta (D-CA) and Mike Kelly (R-PA) introduced H.R. 889 – The Broadband Grant Tax Treatment Act. On the Senate side, Senators Mark Warner (D-VA) and Jerry Moran (R-KS) introduced an identical bill, S.341. Both bills would amend the federal tax code so that grants received from the Infrastructure Investment and Jobs Act and the American Rescue Plan Act will not be considered to be taxable income.

This would cover any funding that ultimately derived from ARPA funding, and I have to assume that it covers both state and local government grant awards made using ARPA funding. This would also presumably exempt ReConnect and NTIA grants that were funded through those two federal laws. But it might not exempt ReConnect funds that were directly funded in an Agricultural bill. The tax exemption would be retroactive for eligible grants awarded in 2021 and 2022.

In the past, the IRS had the authority to excuse grants from being taxable, and the agency excused the taxes on grants made from the NTIA’s 2009 BTOP and BIP grants. But the IRS lost that authority in the 2018 Tax Cuts and Jobs Act. It now takes specific action from Congress to forgive tax on grant income.

Most grant revenue is taxable. This makes sense because the majority of government grants are made to cover salaries for people like researchers – such grants are taxed as personal income like any other source of payroll. But there is a good argument to be made that grants for infrastructure are different. The whole point of the current broadband grants is to build infrastructure. A huge portion of the IIJA funding goes towards the labor of building a broadband network, a road, a bridge, a dam – and those payrolls from the grant funding are fully taxable. Most of the materials used in the grants are supposed to be made in America, and the profits from selling those materials is also taxable.

Fully taxing the infrastructure grant money and then also taxing the payrolls of the folks who build the grant-funded project feels like double taxation to me. We don’t tax corporations on gross sales. Corporations only pay taxes on profits, but most of the tax from sales to corporations comes from the taxes on the salaries paid to employees.

An argument can be made that grant revenue used for infrastructure isn’t taxable – but it involves an understanding of accounting to understand this. Corporations don’t get to immediately write-off the cost of building an asset. The cost of an asset, like a fiber network, is recognized as a tax deduction over time through depreciation. If a corporation depreciates a fiber network over thirty years, then it claims a little piece of the fiber asset as an expense for each of the thirty years.

But saying that an ISP will eventually get the money back ignores the practical impact of making infrastructure grants taxable. Grant money is given to ISPs as they build the network. If it takes three years to build a grant-funded fiber route, then the corporation gets the grant award spread over those three years. In each of those years the grant money is considered to be income. Assuming the corporation is already profitable, it will have to pay a 21% federal tax each year on the grant award. States with a state income tax will also expect the tax payment.

For sake of simplicity, let’s assume the total tax liability is 25%. If an ISP accepts a $40 million BEAD grant, it’s going to owe $10 million in taxes. Over the thirty years of deprecation its tax liability will theoretically get this money back, but the company will be required to write a big check to the tax authorities over each of the first three years. Note that taxes are more complex than this and that’s a simplified explanation.

That is a huge penalty for an ISP for taking grant funding. The company will have already made a 25% matching contribution to the grant project, which would be roughly be $13.3 million. In this simplified example, the ISP will have had to come up with $23.3 million to accept a $40 million grant.

This have huge implications for an ISP. First, while banks might fund the 25% grant matching, they are going to leery about funding the tax liability. ISPs in general don’t carry a lot of cash, so coming up with the tax liability is a big problem. This also makes the project a lot less profitable. My math shows that most rural grant projects are only minimally profitable even before considering this extra tax. BEAD grant areas, by definition, are sparsely populated, meaning there is not a huge amount of revenue generated. I honestly have not looked at a rural broadband project that could absorb this extra tax cost.

This extra taxation makes it a lot harder to justify taking a broadband grant. ISPs consider grant projects because they add customers and increase economy of scale. But nobody wants to take on a grant project that is a cash loser.

I can’t find any news about the topic. The House and Senate web sites show the bills still stuck in the Finance Committees. Perhaps this issue has been rolled into some other piece of legislation, but the folks I know who follow this haven’t heard about anything like that. If this legislation is still stuck in limbo, ISPs need to reach out to their congresspeople to reiterate the dire results of keeping these grants as taxable income. If this is not solved, it’s one more reason that many ISPs won’t be able to take BEAD grants. Only those ready to take on the extra tax liability can justify it – and most ISPs I know can’t afford this extra cost.

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Regulation - What is it Good For?

Cable Companies and BEAD Grants

The BEAD grant establishes a clear definition of areas that are eligible for grants as any place where broadband speeds are less than 100/20 Mbps. During the lobbying of creating the IIJA legislation that created the BEAD grants, the cable companies and WISPs lobbied hard to get that speed definition when there were pro-broadband members of Congress wanting to set that definition at 100/100 Mbps.

I’ve been wondering lately how State Broadband offices are going to deal with cable companies that don’t meet that speed today. In working around the country, I keep encountering cable networks that don’t meet that definition.

Some of the areas served by cable companies are clearly grant eligible. While the big cable companies have all said that they’ve upgraded all of their networks to be fast, there are still tiny systems owned by the big cable companies that are using older technologies. We were recently working in a county in New Mexico where Comcast was still reporting 50 Mbps speeds for a cable network in the county seat. This system was still operating at DOCSIS 2.0, but to Comcast’s credit, it is finally upgrading the technology to the latest DOCSIS 3.1. If Comcast didn’t make this upgrade, this network would be eligible for BEAD funding.

But the issue that is more normal is cable networks that don’t meet the 20 Mbps upload speed test. I’m seeing a lot of networks, particularly in county seats in smaller counties where the upload speeds can’t deliver 20 Mbps. Should an area where the cable network is only delivering 10 Mbps or 15 Mbps upload be eligible for BEAD grants?

In most cases, the cable companies report the upload speed as exactly 20 Mbps in the FCC maps. But speed tests often show that few households meet that speed. I’m working with a few communities that are up in arms over this because many of the homes and businesses struggle with the restrictions that come with slow upload speeds.

Businesses have embraced functions that need upload speeds. They might want to allow multiple employees to conduct separate Zoom calls at the same time. Businesses have embraced software that operates in the cloud that requires constant upload connections. Businesses have converted to VoIP and need upload bandwidth to maintain telephone calls. Businesses use security systems that upload videos from security cameras to the cloud. I’ve interviewed dozens of businesses that say that they feel restricted by problems with upload speeds – particularly on older networks with a lot of jitter and latency.

Communities are confused about how to deal with this issue. I’ve not heard of any communities served by a cable company that got reclassified as underserved in the flurry of map challenges over the last six months – if readers know of any such reclassifications, I’d love to hear about it. Many communities are hoping that State Grant offices will be open to allowing for BEAD grants in these communities – but that feels like a big uphill battle.

The reality is that when an ISP declares in the FCC broadband maps that it is exactly meeting one of the speed thresholds of either 100 Mbps download or 20 Mbps upload, there should be an opportunity for a community to challenge the FCC maps.

Clearly, a local cable network delivering 10 or 12 Mbps upload speeds does not meet the definition of being served. But I have to wonder about the practical chances of somebody getting a BEAD grant to overbuild such a community.

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Regulation - What is it Good For? The Industry

Broadband Grants and Affordable Rates

One of the things that I don’t hear discussed enough is that some of the ISPs chasing rural broadband grants have high broadband rates. I’m curious how much emphasis State Broadband offices will put on the retail rates of grant applicants when evaluating grant winners.

The two most easily identified ISPs with high broadband rates are Charter and Comcast. Charter rates for standalone basic broadband are now over $90 in many markets, and Comcast is nearing $100 per month. Both ISPs don’t give any indication that they are going to slow down with annual rate increases. In fact, now that broadband customer growth has slowed, rate increases are the best path for these companies to satisfy Wall Street expectations.

But these two companies aren’t the only expensive ISPs that are winning grants. Any other big cable companies that will be pursuing grant funding have rates similar to Charter and Comcast. Many of the RDOF winners have high rates. Nextlink has affordable slower speeds but charges $100 for 300 Mbps – the starting speed for cable companies. Resound Networks currently charges $99 for 100 Mbps. I’ve seen several smaller RDOF winners with base rates starting around $100.

We already know that the high broadband rates of the cable companies in cities are a major factor in the growth of broadband deserts where many households can’t afford broadband. Numerous studies have shown a direct correlation between household income and broadband adoption – high rates make it harder to afford broadband.

To be fair to the big cable companies, most have special low rates for low-income residents, but that also comes with slower speeds. But I have to wonder if cable companies will be as willing to connect low-income homes on a newly built fiber network where it can easily cost over $1,000 to add a new subscriber. It’s relatively inexpensive in cities to add a customer to a coaxial cable network, but will the cable companies be willing to make a significant investment for homes that will have low rates that will take many years to break even?

A lot of ISPs participate in the FCC’s ACP plan that gives low-income subscribers a $30 monthly discount. But the funding for that program will be gone around the end of the first quarter of 2024, and it’s anybody’s guess if a divided Congress will approve the continuation of a low-income program.

What is not being discussed enough is that most of the ISPs that participate in ACP or have their own low-income plan don’t aggressively push saving to low-income households. It’s easy for public relations purposes to have these programs but not let customers know the discounts exist. The ISP that brags the loudest about serving low-income households is Comcast. The company’s website says that it has brought its low-income product to 10 million people since 2011. That’s impressive and probably equates to something like 4 million homes. It’s less impressive when you realize that Comcast passes over 61 million homes. ACP is eligible to homes with household incomes up to 200% of the level of poverty. My quickie estimate is that perhaps 13 million homes in the Comcast footprint are eligible for the ACP discount (I’d appreciate other estimates).

But back to high rates. There is a significant level of poverty in many rural areas. In the states I’ve been working in recently, the level of poverty in rural counties is generally higher than the statewide average. How much good are we doing for rural counties when we fund broadband networks where the rates will be over $90? Even with the ACP discount the cost of broadband will be over $60.

I contrast this to many cooperatives and even the larger telco overbuilders. Most of them have broadband rates in the $60 – $70 range. If I’m a rural customer and some giant ISP is going to bring fiber using grant money, I’d prefer the rates from AT&T or Frontier over the big cable companies. But the surveys I’ve done show that folks prefer local ISPs over big ISPs – they are hoping that grants will go cooperatives, small telcos, and other local ISPs.

I expect the BEAD grants will have the most complicated scoring of any broadband grant program ever. There are so many requirements for qualifying for a BEAD grant that it’s hard to think broadband rates can play a significant role in determining who wins the grants. That’s unfortunate because, in the long run, rates might be the most important factor for an ISP that comes to a rural area.

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