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.

The Proposed 5G Fund

The FCC is seeking public comments in a Notice for Proposed Rulemaking on how to determine the coverage areas and the timing for the new $9 billion 5G Fund. The money for the 5G Fund will come out of the Universal Service Fund. The 5G Fund is aimed at bringing cellular coverage to rural places that don’t have coverage today and will award the money using a reverse auction. The FCC is proposing to award $8 billion in the first round of auctions with $1 billion awarded later.

The FCC’s attempt to spend this money already has a checkered past. The FCC tried to award $4.5 billion of this same funding in 2019 under the name of Mobility Fund II. When preparing for that reverse auction the FCC asked existing cellular carriers to provide maps showing existing cellular coverage. It turns out that the maps provided by Verizon, T-Mobile, and US Cellular were badly overstated and smaller cellular carriers cried foul. The smaller carriers claimed that the overstatement of coverage was meant to shuttle funding opportunities away from smaller cellular companies. It felt eerily familiar to just watch Frontier and a few other big telcos make similar last-minute claims about their broadband coverage for the RDOF grants.

The FCC eventually agreed with the small carriers and canceled the auction last year. The $4.5 billion in funding from 2019 was augmented by an additional $4.5 billion and reconstituted as the 5G Fund.

The FCC is asking for comments on two different options for awarding the money. The first option would award the funds in 2021 based upon the best current cellular coverage maps available. This option would only award money to areas that have never had 3G or 4G coverage. The second option would delay the auction until 2023, by which time the FCC is hoping for better maps through a process they have labeled as the Digital Opportunity Data Collection initiative.

The need for this fund is further complicated by the T-Mobile / Sprint merger. One of the merger agreements made by T-Mobile is to cover 99% of the people in the country, including 90% of those living in rural areas with 5G of at least 50 Mbps data speeds within 6 years of the merger.

There doesn’t seem to be any logical way the FCC can award this money in 2021. By definition, they’d be awarding using grant coverage using maps that the FCC openly acknowledges are badly flawed. Maybe even more importantly, at this early date the FCC can’t know where T-Mobile plans to cover over the next 6 years. If the FCC proceeds now they will almost surely be spending money to cover areas that T-Mobile is already on the hook to serve. By using flawed maps, the FCC will almost certainly miss areas that need service that T-Mobile will not be serving.

The T-Mobile merger agreement also raises a serious issue about the size of the 5G Fund. The Fund was set at $9 billion before T-Mobile agreed to cover a lot of the areas that were proposed for funding in 2019. Isn’t the $9 billion now too high since T-Mobile will be covering many of these areas?

This raises a bigger policy question. Does the FCC really want to spend $9 billion to cover the last 1% of the US population with cellular when a much larger percentage of rural homes don’t have workable home broadband? Shouldn’t some of this money now be repurposed to fund rural broadband in light of the T-Mobile agreement to cover 99% of people with cellular coverage?

Finally, FCC Chairman Ajit Pai never misses a chance to overhype 5G. In the announcement for the NPRM the Chairman was quoted as saying, “5G promises to be the next leap in broadband technology, offering significantly increased speeds and reduced latency. The 5G Fund for Rural America focuses on building out 5G networks in areas that likely would otherwise go unserved. It’s critical that Americans living in rural communities have the same opportunities as everybody else.”

What the Chairman and the carriers are  never going to say out loud is that 5G is an urban technology. All of the coolest features of 5G only work when cell sites are close together. The areas covered by these grants are the most rural cell sites in the US and will be serving only a few people at any given location. Low density sites gain almost no extra advantage from 5G, so they will effectively act like 4G LTE sites forever. It’s even unlikely that a cellular carrier would bother using extra spectrum at a cell site with only a few customers. Such cell sites need only the basic 4G LTE coverage and spectrum bands, and it’s unlikely that these areas will get true 5G, regardless of the 5G name the FCC has attached to the funding mechanism.

The Rural Broadband Gap is Widening

A lot of attention is being paid to the broadband gap between urban and rural America. There are a lot of different estimates of the number of rural homes and businesses that don’t have broadband. At the low end of the scale are the FCC estimates that come from the overstated FCC broadband maps that are derived from overstated 477 data from ISPs. States and counties have made estimates of broadband coverage which invariably show more places without broadband than the FCC data. What everybody agrees on is that there are still a lot of rural places with poor broadband, be that number 18 million or 30 million people or 50 million – there is a definite urban versus rural broadband gap.

The FCC has been publicly touting that they are solving the gap by funding programs that bring broadband to places that don’t have it. The upcoming $20 billion RDOF grants will make a dent in the places without broadband, although the 6-year required construction buildout that doesn’t start until next year will feel glacial to places that desperately need broadband today. We’ll have to wait for the reverse auction to see how many millions of homes eventually get broadband from this program – at best it’s likely to only help a fraction of those with no broadband. Unless Congress acts, there isn’t going to be a solution for the many millions that are not going to be covered by FCC programs.

There is another broadband gap that is not getting the press coverage. The average speed of broadband is growing rapidly. FCC Chairman Ajit Pai took credit for this growth in a recent tweet and claimed faster speeds are due to the end of net neutrality and to ending broadband regulation: “Two years ago today, some Washington politicians promised you that the Internet would slow down. What’s happened since? Average U.S. fixed broadband speeds are UP over 76% according to Ookla. It [repealing net neutrality] wasn’t the end of the Internet as we know it—not even close.”

I’m not sure what Ookla numbers he’s referring to. In the Ookla Speedtest Global Index, the company says that the average fixed broadband speed in the US climbed from 111.69 Mbps to 134.77 Mbps during 2019 – an impressive 21% increase. This matches with recently announced statistics from OpenVault that says that average speeds in the US increased from 103 Mbps to 128 Mbps for the year ending in the third quarter of 2019 – a growth rate of 24%.

I’m not that sure any of the speed increase is due to FCC actions. Faster speeds come from several sources. Most of the increase comes from the big cable companies unilaterally increasing broadband speed in urban markets to as much as 200 Mbps. Since the big cable companies serve two-third of the broadband market, any changes they make in speeds immediately affects the average. The urban speeds are further increased by the continued migration of urban customers from DSL to cable modem. There is also an increase in customers buying gigabit broadband, which according to OpenVault is now 2.8% of all broadband customers – nearly doubling in 2019. Finally, there is a small increase due to some rural markets getting broadband upgrades – but the rural customers added to the market are too small to make much of an impact on the national average. I guess I’d like Chairman Pai to be more specific, because I don’t see an FCC fingerprint on these industry trends.

It’s great that broadband speeds are improving. Anybody who has been paying attention saw this coming, since average speeds having been growing at a rate of over 20% annually for several decades. What Chairman Pai and most others have missed is that these speed increases come almost entirely from urban customers. The speed gap between urban and rural America is widening rapidly as urban speeds climb.

This urban / rural speed gap is important to recognize because urban customers are finding ways to use the faster broadband. Consider the many uses of broadband in urban areas that are out of reach for a rural household. We routinely back-up data files into cloud storage. Our computers, cellphones, cars, TVs and numerous devices routinely and automatically download updates and upload data into the cloud. We use cloud-based security cameras that we can access when away from home. When we walk into our homes our cellphones automatically start using our home broadband. We are free to work from home, even if it’s only to log into a corporate WAN in the evening. Our kids routinely do online homework and practically all of the communications between schools, students, and parents is online. We now use a huge amount of machine-to-machine data that has nothing to do with video and entertainment.

People living without good broadband can’t do any of these things. In just the last week CCG interviewed several rural residents that tell a different story than that list above. Parents drive an hour so kids can use library broadband for schoolwork. Rural businesses can’t maintain a quality signal on satellite broadband to be able to take credit card payments. Residents frantically try to shut off automatically updating software to avoid going over their data caps. I could fill a week of blogs with the horror stories about rural broadband.

If we look back even just seven or eight years ago, the urban versus rural speed gap didn’t feel so wide. When the average urban home got speeds of 25 Mbps there wasn’t such a giant gap with rural residents because urban residents didn’t use broadband as extensively as they do today. But urban speeds are getting faster and faster while the broadband for too many rural homes has stayed stagnant – where it even exists. To quote a rural resident that we spoke to last week, rural people with poor broadband now feel like they aren’t part of the 21st century.

AT&T Cutting Capital Spending

AT&T announced it will be reducing capital spending in 2020. That news is significant for several reasons. AT&T’s capital plans are always big news because they have the largest annual capital budget of the big telcos and cable companies. The AT&T capital budget for 2019 was $23 billion. It’s big news when they are only planning on spending $20 billion in 2020.

It’s worth noting that some of AT&T’s capital spending is not being done with their own money. In 2020 they will be receiving the final installment of $428 million for the sixth year of the CAF II program. AT&T recently announced that they are 75% finished the construction of the FirstNet network for first responders, so the company should be receiving the last 25% of the $6.5 billion of federal funding next year. In future years AT&T will likely be collecting some significant share of the recently announced $9 billion 5G Fund paid out of the Universal Service Fund to bring better cellular service for the most rural parts of the country.

There are ripples throughout the telecom sector when AT&T increases or decreases its capital budget. For example, a significant slash of AT&T spending has a significant impact on the various major electronics vendors that will now have to lower their revenue expectations for 2020. While the whole telecom sector is busy, this still means lower revenues for the major telecom vendors.

This reduction in AT&T spending makes me wonder about the 5G war we are supposedly having with China. If you listen to the carrier-driven rhetoric in Washington DC, you would think that there is an urgent need to spend huge amounts of capital immediately on 5G infrastructure. It was that rhetoric that gave the FCC cover to double the size of the recently announced 5G Fund to $9 billion.

It’s hard to imagine that AT&T would be cutting its capital budget if 5G implementation was truly a national priority and a crisis. The truth about 5G can be seen by how the cellular carrier CEOs communicate with their stockholders – the big carriers are struggling right now to find an immediate business case that justifies huge spending on 5G. It turns out that much of the public isn’t willing to pay more for faster cellular broadband. Every carrier has a list of future benefits from 5G, but there are no applications that will create the quick revenues that would prompt AT&T to keep spending capital at historic levels.

This is not to say that AT&T and the other wireless carriers aren’t spending money on 5G – but AT&T is fitting 5G expansion into its shrinking capital budget. Contrary to everything that the carriers have been telling Washington DC, the carriers are not planning on spending massive amounts of their own money on 5G just yet.

Lower capital spending by AT&T also takes the wind out of the sails of the FCC’s argument that net neutrality was holding back the big ISPs from making capital expenditures. This was the primary reason cited by FCC Chairman Ajit Pai for killing net neutrality and Title II regulation. He argued that overregulation was stopping the big carriers from investing, and he’s still making this same argument today to justify his decision. If Chairman Pai was right, we should be seeing AT&T increase capital spending rather than cutting it.

The idea that there is a direct correlation between capital spending and regulation was always fictional. Big ISPs spend money on capital that they think will increase future returns – it’s hard to imagine regulations that would stop the big companies from pursuing good business ideas. AT&T’s capital spending is much more related to what its competitors like Verizon, T-Mobile, and Comcast are doing. When the FCC killed Title II regulation and net neutrality, the agency was removing the last regulations major from a broadband industry that was already barely regulated. It’s hard to think that change had much impact in the Board room or the business development groups at the big ISPs.

It’s worth noting that AT&T has now joined many other big US corporations and is using free cash to buy back its own stock. The company already announced plans to buy back $4 billion of its own stock in the first quarter of 2020 – retiring roughly 100 million shares. I’m sure that decision had some impact on the capital budget. This might mean that AT&T upper management values stock buy-backs to increase earnings per share more than they value capital spending.

FCC to Create 5G Fund

On December 4, FCC Chairman Ajit Pai announced a plan to create what he is calling the 5G Fund. This new fund will replace the already planned $4.5 billion Mobility Fund Phase II Fund and adds another $4.5 billion. The fund has been renamed to suggest that 5G will bring faster broadband to rural America.

The original goal of the Mobility Fund II was to expand 4G LTE coverage to the most rural parts of the country where there is no cellular coverage today. While preparing to award that fund, the FCC figured out that the 4G coverage maps for the biggest cellular companies were significantly overstated. This caused the FCC to pause the Mobility Fund Phase II awards, and they are now rolling that money into this larger new fund. There are things to both love and hate about this announcement.

Some of the Things to Hate:

I hate that the 5G hype got rolled into this announcement. Consider the following from Pai’s announcement:

5G has the potential to bring many benefits to American consumers and businesses, including wireless networks that are more responsive, more secure, and up to 100 times faster than today’s 4G LTE networks. . . . We want to make sure that rural Americans enjoy these benefits, just as residents of large urban areas will. In order to do that, the Universal Service Fund must be forward-looking and support the networks of tomorrow.

That statement is incredibly misleading. The only new technology that is 100 times faster than 4G LTE is the use of millimeter wave spectrum. Millimeter wave spectrum is only faster when the transmitters are fiber-fed. This fund is not going to be used to build the fiber needed to bring millimeter wave hot spots to the most rural parts of America. That technology only broadcasts fast broadband for less than 1,000 feet, so it’s likely to never be economically viable to bring this technology to remote places. Unfortunately, the Chairman’s statement is going to make rural people think they might be getting broadband that is 100 times faster.

I also hate that Chairman Pai used this same announcement to announce that AT&T and Verizon have massively overstated their 4G coverage maps. One would expect there to be some sort of regulatory repercussion for those companies exaggerating their coverage areas. The big carriers have been accused of overstating coverage to limit how much of the Mobility Fund Phase II went to smaller carriers. Instead of punishing the big carriers, this announcement glossed over the bad behavior and instead rewards them by doubling the size of the fund. I’m guessing that the fund doubled in size to cover the areas that the carriers had erroneously claimed as having cell coverage. At the end of the day, this fund is another big dollar giveaway to the biggest carriers in the country. I know this money should greatly improve rural cellular coverage – it’s just getting a bit tiresome watching this FCC hand everything imaginable to the biggest carriers.

I also hate that this order is not likely going to require that any new fiber built using federal money be made available to others. These billions will be used to construct a lot of fiber to rural cell towers and that fiber would be a great launching point for competitiors that want to bring better broadband to rural areas. You might recall that the broadband grants that came from the stimulus program required all fiber constructed with federal funds be made available to ISPs at affordable rates. However, when money is given to the big carriers – in this program and in the CAF II program – there is no such requirement.

Some of the Things to Like:

This reconstituted fund still keeps the primary goal of the original Mobility Fund Phase II, which is to bring better cellular coverage to areas that don’t have it today. I visit rural America regularly and it’s not hard in rural places to drive out of cellular coverage. Hopefully, this fund fills many of those coverage gaps. I’m always amazed when I come upon a small community in an area with zero cellphone coverage. We talk all of the time about the broadband gap, but for many folks, there is a more fundamental connectivity gap.

I also like that some of this money will go to the smaller cellular carriers that already serve in rural America. I have faith that they’ll use the money more wisely than the big carriers. The fund will operate as a reverse auction, and I hope that the many smaller cellular carriers can win the money in places where they already have better networks than the big carriers.

C-Band Announcement Moot on Rural Wireless

On November 18, FCC Chairman Ajit Pai told several members of Congress that he had decided there should be a public auction for the C-Band spectrum that sits between 3.7 GHz and 4.2 GHz. The spectrum has historically been used by satellite companies for communication between satellites and earth stations. This is prime spectrum for 5G cellular broadband, but also could provide a huge benefit to fixed wireless providers in rural America. Chairman Pai will be asking the rest of the FCC commissioners to approve an order sometime after the first of next year. Making an early announcement is a bit unusual since major orders like this are usually announced by releasing a written order that comes after a vote of the Commission.

The letters from Chairman Pai describe four reasons behind the decision: First, we must make available a significant amount of C-Band spectrum for 5G. Second, we must make spectrum available for 5G quickly. Third, we must generate revenue for the federal government. And, Fourth, we must protect the services that are currently delivered using the C-Band so that they can continue to be delivered to the American people. 

Missing from Chairman Pai’s letter was any mention of making the C-Band spectrum available for rural fixed wireless. WISPA and other rural proponents have been lobbying for sharing the spectrum so that the C-Band could be used for urban 5G while also benefitting faster rural broadband.

This has been an unusual docket from the start because the satellite providers, under the name of the C-Band Alliance (CBA) offered to relocate to the higher part of the spectrum if they could hold a private auction to sell the vacated spectrum to the cellular carriers. There were several problems with that offer. First, the satellite providers would make billions of dollars of windfall profits through selling spectrum that they don’t own. Federal law makes it clear that the FCC has the right to award or take-back spectrum and it would have been a major precedent for license holders to be able to sell spectrum for a huge profit. There were also obvious concerns about transparency, and it was feared that backroom deals would be struck to give spectrum to the big cellular carriers for bargain prices while still benefitting the satellite companies.

There was also a political nuance. The CBA proposed to give some of the proceeds of the private auction to the federal government, similar to what happens in an FCC auction. However, money given that way would go towards paying off the federal deficit. Proceeds of FCC auctions can be earmarked for specific uses and legislators all wanted to see the spectrum sold by FCC auction so that they could use some of the money.

The rural spectrum-sharing idea might not be not dead since the announcement was made by short letter. However, the Chairman could easily have mentioned rural broadband in the letters to legislators and didn’t. The Chairman has made numerous speeches where he said that solving the rural digital divide is his primary goal. It’s clear by his actions during the last few years that deregulation and giveaways to the big carriers under the guise of promoting 5G are the real priority of this FCC.

The C-Band spectrum sits next to the recently released CBRS spectrum at 3.5 GHz. Just as additional spectrum benefits 5G, fixed wireless technology improves significantly by combining multiple bands of frequency. Rural carriers have been arguing for years that the FCC should allow for the sharing of spectrum. Proponents of rural broadband argue that urban and rural use of spectrum can coexist since most 5G spectrum is only going to be needed in urban areas. They believe that such spectrum can be used in a point-to-point or point-to-multipoint configuration in rural America without interfering with urban 5G. The big cellular carriers are reluctant to share spectrum because it causes them extra effort, so only the FCC can make it happen.

If the final order doesn’t require frequency sharing, it will be another slap in the face for rural broadband. Since there is not yet a written order, proponents of rural broadband still have an opportunity to be heard at the FCC on the topic. However, I fear that the issue has already been decided and that rural broadband will again be ignored by the FCC.

FCC Looks to Kill Copper Unbundling

FCC Chairman Ajit Pai circulated a draft order that would start the process of killing the unbundling of copper facilities. This unbundling was originally ordered with the Telecommunications Act of 1996, and unleashed telephone and broadband competition in the US. This new law was implemented before the introduction of DSL and newly formed competitors (CLECs) were able to use telco copper to compete for voice and data service using T1s. The 1996 Act also required that the big telcos offer their most basic products for resale.

The FCC noted that their proposed order will “not grant forbearance from regulatory obligations governing broadband networks”, meaning they are not going to fully eliminate the requirement for copper unbundling. This is because the FCC doesn’t have the authority to fully eliminate unbundling since the obligation was required by Congress –  the FCC is mandated to obey that law until it’s either changed by Congress or until there is no more copper left to unbundle. Much of the industry has been calling for an updated telecommunications act for years, but in the current dysfunction politics of Washington DC that doesn’t look likely.

The big telcos have hated the unbundling requirement since the day it was passed. Eliminating this requirement has been near the top of their regulatory wish list since 1996. The big telcos hate of unbundling is somewhat irrational since in today’s environment unbundling likely makes them money. There are still CLECs selling DSL from unbundled copper and generating monies for the telcos that they’d likely not have otherwise. But the hatred for the original ruling has become ingrained in the big telco culture.

The FCC’s proposal is to have a three year transition from the currently mandated rates that are set at incremental costs to some market-based leased rate. I guess we’ll have to see during that transition if the telcos plan to price CLECs out of the market or if they will offer reasonable lease rates that will continue to offer connections.

This change has the possibility of causing harm to CLECs and consumers. There are still a number of CLECs selling DSL over unbundled copper elements. In many cases these CLECs operate the newest DSL electronics and can offer faster data speeds than the telco DSL. It’s not unusual for CLECs to have 50 Mbps residential DSL. For businesses they can now combine multiple pairs of copper and I’ve seen unbundled DSL products for businesses as fast as 500 Mbps.

There are still a lot of customer that are choosing to stay with DSL. Some of these customers don’t feel the need for faster data speeds. In other cases it’s due to the fact that DSL is generally priced to be cheaper than cable modem products. At CCG we do surveys and it’s not unusual to find anywhere from 25% to 45% of the customers still buying DSL in a market that has a cable competitor. While there are millions of customers annually making the transition to cable modem service, there are still big numbers of households still using DSL – it’s many years away from dying.

There is another quieter use of unbundled copper that still has competitors worried. Any competitor that offers voice service using their own switch is still required by law to interconnect to the local incumbent telcos. Most of that interconnection is done today using fiber transport, but there still is a significant impact from unbundled elements.

Surprisingly, the vast majority of the public switched telecommunications network (PSTN) still uses technology based upon T1s. There was a huge noise made 5 – 10 years ago about having a ‘digital transition’ where the interconnection network was going to migrate to 100% IP. But for the most part this transition never occurred. Competitors can still bring fiber to meet an incumbent telco network, but that fiber signal must still be muxed down to T1 channels using T1s and DS3. The pricing for those interconnections are part of the same rules the FCC wants to kill. CLECs everywhere are going to be worried about seeing huge price increases for the interconnection process.

The big telcos have always wanted interconnection to be done at tariffed special access rates. These are the rates that often had a T1 (1.5 Mbps connection) priced at $700 per month. The unbundled cost for an interconnection T1 is $100 or less in most places and competitors are going to worry about seeing a big price increase to tie their network to telco tandems.

It’s not surprising to see this FCC doing this. They have been checking off the regulatory wish list of the telcos and the cable companies since Chairman Pai took over leadership. This is one of those regulatory issues that the big telcos hate as a policy issue, but which has quietly been operationally working well now for decades. There’s no pressing reason for the FCC to make this change. Copper is naturally dying over time and the issue eventually dies with the copper. There are direct measurable benefits to consumers from unbundling, so the real losers are going to be customers who lose DSL connections they are happy with.

Is the FCC Really Solving the Digital Divide?

The FCC recently released the 2019 Broadband Deployment Report, with the subtitle: Digital Divide Narrowing Substantially. Chairman Pai is highlighting several facts that he says demonstrate that more households now have access to fast broadband. The report highlights rural fiber projects and other efforts that are closing the digital divide. The FCC concludes that broadband is being deployed on a reasonable and timely basis – a determination they are required to make every year by Congressional mandate. If the FCC ever concludes that broadband is not being deployed fast enough, they are required by law to rectify the situation.

To give the FCC some credit, there is a substantial amount of rural fiber being constructed – mostly from the ACAM funds being provided to small telephone companies with some other fiber being deployed via rural broadband grants. Just to provide an example, two years ago Otter Tail County Minnesota had no fiber-to-the-premise. Since then the northern half of the county is seeing fiber deployed from several telephone companies. This kind of fiber expansion is great news to rural counties, but counties like Otter Tail are now wondering how to upgrade the rest of their county.

Unfortunately, this FCC has zero credibility on the issue. The 2018 Broadband Deployment Report reached the same conclusion, but it turns out that there was a huge reporting error in the data supporting that report where the ISP, Barrier Free, had erroneously reported that they had deployed fiber to 62 million residents in New York. Even after the FCC recently corrected for that huge error they still kept the original conclusion. This raises a question about what defines ‘reasonable and timely deployment of broadband’ if having fiber to 52 million fewer people doesn’t change the answer.

Anybody who works with rural broadband knows that the FCC databases are full of holes. The FCC statistics come from the data that ISPs report to the FCC each year about their broadband deployment. In many cases, ISPs exaggerate broadband speeds and report marketing speeds instead of actual speeds. The reporting system also contains a huge logical flaw in that if a census block has only one customer with fast broadband, the whole census block is assumed to have that speed.

I work with numerous rural counties where broadband is still largely non-existent outside of the county seat, and yet the FCC maps routinely show swaths of broadband availability in many rural counties where it doesn’t exist.

Researchers at Penn State recently looked at broadband coverage across rural Pennsylvania and found that the FCC maps grossly overstate the availability of broadband for huge parts of the state. Anybody who has followed the history of broadband in Pennsylvania already understands this. Years ago, Verizon reneged on a deal to introduce DSL everywhere – a promise made in exchange for becoming deregulated. Verizon ended up ignoring most of the rural parts of the state.

Microsoft has blown an even bigger hole in the FCC claims. Microsoft is in an interesting position in that customers in every corner of the country ask for online upgrades for Windows and Microsoft Office. Microsoft is able to measure the actual speed of customer download for tens of millions of upgrades every quarter. Microsoft reports that almost half of all downloads of their software is done at speeds that are slower than the FCC’s definition of broadband of 25/3 Mbps. Measuring a big download is the ultimate test of broadband speeds since ISPs often boost download speeds for the first minute or two to give the impression they have fast broadband (and to fool speed tests). Longer downloads show the real speeds. Admittedly some of Microsoft’s findings are due to households that subscribe to slower broadband to save money, but the Microsoft data still shows that a huge number of ISP connections underperform. The Microsoft figures are also understated since they don’t include the many millions of households that can’t download software since they have no access to home broadband.

The FCC is voting this week to undertake a new mapping program to better define real broadband speeds. I’m guessing that effort will take at least a few years, giving the FCC more time to hide behind bad data. Even with a new mapping process, the data is still going to have many problems if it’s self-reported by the ISPs. I’m sure any new mapping effort will be an improvement, but I don’t hold out any hopes that the FCC will interpret better data to mean that broadband deployment is lagging.

Designing the Ideal Federal Broadband Grant Program

In April, FCC Chairman Ajit Pai announced a new rural broadband initiative that will provide $20.4 billion of new funding. We don’t know many details yet, but here are a few things that will likely be involved in awarding the funding:

  • The FCC is leaning towards a reverse auction.
  • The program will likely require technologies that can deliver at least 25/3 Mbps broadband speeds.
  • The program will be funded within the existing Universal Service Fund, mostly by repositioning the original CAF II plan.
  • The grants might all be awarded at once, similar to A-CAM and CAF II awards, meaning that there might be only one chance to apply, with the awards to be paid out over a longer time period.

I’m writing a series of blogs that will examine the ideal way to design and administer a grant program of this size. We’ve seen both good and also disastously bad federal broadband programs before, and i’m hoping the FCC will take some time to make this grant program one of the effective ones. I’m sure the details of this new program are not yet set in stone, and folks in rural America need to make their voices heard now if they want some of this money to benefit their communities.

I’m going to look at the following topics, and perhaps more as I write this. At the end of this process I’ll post a whitepaper on my website that consolidates all of these discussions into one document.

A well-designed broadband grant program of this magnitude should consider the following:

What is the End Goal?

It’s important up-front for the FCC to determine how the grant moneys are to be used. The best grant programs have a specific goal, and then the application and award process is designed to best meet the goals. The goal can’t be something as simple as ‘promote rural broadband’, because a goal that simplistic is bound to create a hodgepodge of grant awards.

What Broadband Speeds Should be Supported?

This is an area where the FCC failed miserably in the past. They awarded over $11 billion in the CAF II program that was used to upgrade broadband speeds to speeds of only 10/1 Mbps. When the FCC set the 10/1 Mbps speed that didn’t even meet their own definition of broadband. How should the FCC determine eligible speeds this time to avoid a repeat of the CAF II debacle?

Who Should be Eligible?

FCC programs in the past have usually made the monies available to a wide range of recipients. However, the specific details of the grant programs have often made it hard for whole classes of entities like cities or counties to accept the awards. As an example, there are many entities electing to not participate in the current Re-Connect grant program because they can’t accept any part of the awards that include RUS loans.

Is a Reverse Auction the Right Mechanism?

The FCC and numerous politicians currently favor reverse auctions. Like any mechanism, there are situation where reverse grants are a great tool and others where they will distort the award process. Are reverse auctions a good tool for this grant program?

Other Issues

There are two drastically different ways to hand out these grants. One is to follow the CAF II mechanism and award all of the $20 billion in one huge auction and then pay it out over 6 or 8 years. The other would be to divide the award money into even tranches and have a new grant award for each of those years.

In the recent Re-Connect grants the FCC decided to blend grants and loans. I know the loan component stopped most of my clients from pursuing these grants. Should there be a loan component of the grants?

There are also technical issues to consider. I had clients who were outbid in the recent CAF II reverse auction by wireless companies that gained bidding preference by promising that their fixed wireless networks could achieve across-the-board 100 Mbps broadband. I still don’t know of a wireless technology that can do that over a large footprint. How should the FCC make sure that technologies deliver what’s promised?

What’s the Role of States in this Process?

What should states be doing to maximize the chance for federal grant money to be awarded to their state?

This blog is part of a series:

Setting the Right Goals for Grants

Speed Goals for FCC Grants

Who Should be Eligible for Grants?

Are Reverse Auctions the Right Mechanism?

What Technology Should be Covered?

State’s Role in Broadband Grants

Summary and Conclusions