Let me first explain the background to this challenge process. It’s a confusing and messy story. When Congress funded the new BEAD grants, one of the provisions was that States have to use the FCC maps as the basis for the broadband grants. This is a dreadful provision since the FCC maps have been so inaccurate in the past. Several states have done enough analysis to show that the current FCC maps mischaracterize millions of homes as having adequate broadband that doesn’t exist. This is almost entirely due to the fact that ISPs feed the data into the FCC maps with no review or challenge by the FCC. The FCC mapping rules say that an ISP can report ‘marketing speeds’, and many ISPs have used that ability to overstate the speeds of broadband. For example, there are millions of homes in the current FCC maps using DSL where the telcos claim speeds of 25 Mbps, but where actual speeds are almost always far slower than this. This overstatement of the existing capability means that customers would be categorized as underserved in the BEAD grants instead of unserved.
The FCC is scrambling to create a new set of broadband maps to be used for the BEAD grants. The latest I’ve heard is that the new maps might be ready by November. The new maps completely change the way that ISPs report the data – they now must draw polygons around customers rather than using Census blocks. But the new mapping rules didn’t make the change that matters the most – ISPs are still allowed to list marketing speeds instead of actual speeds.
I’m certain that the new maps are going to be a disaster, at least this first version that comes out this fall. First, many ISPs are going to stumble making the conversion to the new mapping system – it’s complicated and is not going to be easy to get right. But my real concern is that ISPs that want to gum up the grants can do so by overstating broadband speed capabilities, as they have done in the past.
We don’t have to look back very far into the past to see the big telcos try this. On the eve of the RDOF auction, CenturyLink and Frontier tried to increase the reported speeds for tens of thousands of Census blocks to above 25/3 Mbps – a change that would have kept those locations out of the RDOF auction. The FCC blocked these mass changes before the auction, but there is nothing to stop the ISPs from doing this again.
And now, there is a new group of ISPs with this same motivation. In the recent NOFO for the BEAD rants, the NTIA says that grants can’t be used to overbuild a fixed wireless ISP that uses licensed spectrum and provides broadband speeds of at least 100/20 Mbps. That ruling means that these ISPs are going to be highly motivated to declare that they are delivering 100/20 Mbps speeds even if they don’t in order to protect their service areas from BEAD grant eligibility. Many wireless ISPs have overstated broadband speeds in the past even more than big telcos, so it’s not hard to imagine some of them doing this.
The challenge process gives a community the chance to fight back if the new FCC maps show that their community is not eligible for the BEAD grants. Each state must allow for a challenge process where a unit of local government, a nonprofit organization, or an ISP can challenge the broadband maps. These challenges are made to the State, and not to the FCC. I’m hopeful that most states will be sympathetic to challenges that will bring faster broadband to places that need it. A State much submit every successful challenge to the NTIA for review – but I believe that the NTIA will want to get these grants done right.
How could a community mount a challenge? The best way to do this is with a mountain of speed test data that has been collected by address. We know that any individual speed test reading is not reliable proof of broadband speeds – there can be factors at a home, such as a poor WiFi router than can lower the measured speed. But speed tests taken in bulk are good proof. For example, if no speed test in a rural area hits the speeds claimed on the FCC maps, it’s fairly certain that the claimed speed is not being delivered.
I also think that gathering anecdotes and stories of the results of the poor broadband in the affected areas can be effective. If an ISP overstates broadband speeds in an area, stories from folks who tell how they can’t work from home or how their kids can’t do homework over the broadband connections can help to bolster the fact that the broadband speeds are being exaggerated.
States will not be asking for these challenges until sometime after the new year, so there is plenty of time this year to start gathering the evidence. It may turn out you won’t need a challenge if the ISPs in your area report existing speeds honestly. But you need to be prepared for the situation where the FCC maps will deny broadband funding for your area. It will be a disaster for a community if they are unfairly denied grant funding because of a dispute about the FCC maps. It’s happened many times before – but communities need to make sure they don’t miss out on this giant round of funding.