The Industry

Are Cable Companies a Broadband Monopoly?

One of the products my consulting firm offers are statistically valid surveys, and conducting surveys has let us get a close look in many communities at the mix between cable broadband and telco DSL. In the last few years, the percentage of DSL subscribers in towns with a good cable company network has plummeted.

It’s not unusual to see DSL market penetration in bigger towns of 10% or less, meaning in most cases that the cable company has essentially won the competitive battle. In most of these towns, we rarely see many DSL customers getting speeds faster than 15 Mbps on the DSL connection, and often a lot less.

We still occasionally see a town with a higher DSL penetration, often due to a telco like AT&T that upgraded the market to offer 50 Mbps DSL that uses two copper lines. But even in these markets, the cable companies have won most of the customers.

The primary reason we see people keeping DSL is price. We often find people paying $35 to $45 for a DSL connection who can’t or won’t upgrade to a more expensive cable modem connection. Many of these folks will hang on to the low-price connection until the day when the telco inevitably retires the telephone copper.

It’s obvious to me that the cable companies are already monopolies in most markets. Any company in any other sector that captured 85% to 95% market share would be deemed a monopoly. I think the cable companies now meet the simple market share test.

Another way to identify monopolies is by noting examples of monopoly behavior. Economists have created a list of changes that are typical monopoly behavior. For example:

  • Price Gouging. Monopolies raise prices over time when there are no competitors to keep them in check. Wall Street has been encouraging the big cable companies to aggressively raise broadband prices. All of the big ISPs have started the process of annually raising rates.
  • Poor Service. Customer service tends to worsen from monopolies because they have no incentive to do better. The big ISPs were already rated as being the worst among all industries at customer service, and there is no reason to think it will ever get any better.
  • Monopsony Power. This term refers to the tendency of monopolies to exploit their purchasing power by forcing low prices on their supply chain. Perhaps the best example of this is Comcast swallowing up the programmers that supply cable TV content.

The reason it’s important to always refer to the big cable companies as monopolies is that we have laws that can kick-in to curb monopoly abuses. However, it likely takes widespread recognition that the cable companies are monopolies to have any hope of awakening monopoly remedies.

The government has a wide range of possible ways to regulate and/or curb monopoly abuses:

  • Governments can fund or support competitors. In this country that likely means having grant programs to support those who would build networks to compete against the cable companies. There are no grants I know of that will fund a competitor to a cable HFC network.
  • The remedy that monopolies hate the most is price regulation. We don’t have to harken back very far into the past to a time when the FCC enforced price regulations over cable companies.
  • One of the most natural ways to regulate monopolies is to enforce some kind of rate of return regulation. Capping monopoly profits will hold down rates.
  • Both the FCC and the Federal Trade Commission have the authority to fine companies for monopoly abuses. These companies are so large that it’s hard to hurt them through penalties, but it is an arrow in the regulatory quiver.
  • Another interesting solution is divestiture – like was imposed on AT&T in 1984. Companies like Comcast are now conglomerations of multiple businesses including broadband networks, entertainment and content creation, and side businesses like cellular, smart home, and numerous other sidelines. Breaking these giant companies into pieces has some merit.

The FCC has gone out of its way to declare that it no longer has any authority over broadband, and thus little or no control over the big cable companies. But this could be changed quickly by by changing the law, and a new Telecom Act could push the FCC back into its original role as a broadband regulator. If the monopoly abuses grow too great, this can also end up at the Justice Department, which had a major role in the divestiture of AT&T.

Regulation - What is it Good For?

FCC – Please Focus on Upload Speeds

I wrote a recent blog that talked about how the FCC is recommending to stick with the 25/3 Mbps definition of broadband for another year. In that blog, I mostly talked about how 25 Mbps download is out of touch when the FCC claims that 85% of homes today can buy 250/25 Mbps broadband.

Today I want to look at the second half of the definition – the upload speed. The FCC is proposing, in 2020 – the year when millions were sent home for work and school – that 3 Mbps upload is a sufficiently high definition of broadband. Sticking with the 3 Mbps definition of broadband makes no sense. I contend that 3 Mbps is massively out of touch with the needs of the average home. To make matters worse, the FCC will allow an ISP that offers 25/3 broadband to bid in and win grant funding in October’s RDOF grant – a network which the ISP then has six years to build. The FCC doesn’t just think that 25/3 is adequate broadband today, they think that is okay broadband size years from now.

The pandemic has made it clear to a lot of households that upload speeds matter. Before the pandemic, customers that cared about the upload speeds tended to be folks that sent huge files such as doctors, architects, engineers, photographers, etc. When they worked from home these folks have known for years that the upload speeds on the average home network are inadequate.

All of a sudden this year, millions of homes found out that they don’t have enough upload broadband speeds. Consider the amount of bandwidth that is needed to work from home. There are two uses of upload broadband that are new to most people – connecting to a school or work server and participating in Zoom or other online meetings.

Many home and work servers require the creation of a virtual private network (VPN). A VPN is a dedicated connection – the home connects and stays connected to a school or work server. It generally requires dedicating at least 1 Mbps of bandwidth, but usually more, to create and maintain a VPN connection. This means that somebody working at home on a VPN is going to tie up 1 – 3 Mbps of bandwidth that can’t be used for anybody else in the home.

Zoom calls also require upload bandwidth. The Zoom website says that a home should have a 2 Mbps connection, both upload and download to sustain a Zoom session between just two people. The amount of download bandwidth increases with each person connected to the call, meaning Zoom recommends the 2 Mbps upload, but a 6 Mbps download for a meeting with three other people.

There are other uses for upload bandwidth in the home as well. For example, a telemedicine call can use even slightly more bandwidth than connecting to work or school servers. Upload bandwidth is needed for gaming in the cloud. Upload bandwidth is also used to back-up data files, pictures, etc. into the cloud.

It doesn’t take complicated math to see why a 3 Mbps connection is inadequate for any household that wants to make more than one upload-heavy connection to the Internet at the same time. 3 Mbps is not enough bandwidth for multiple people in a home trying to connect to work and school servers or to make Zoom-like calls. I’ve heard from numerous people this year telling me they can’t have more than one person at a time using their home broadband connection. Many of these complaints came from households using broadband provided by the big cable companies, and many of these homes thought they had plenty of bandwidth until the pandemic hit.

For the FCC to stick with 3 Mbps upload as the definition of broadband is a slap in the face to every family where more than one person wants to connect to the web at the same time. With that definition, the FCC is blessing any ISP that delivers 3 Mbps upload speeds.

Even if the FCC doesn’t want to upgrade the download component of the definition of broadband, they can’t turn a blind idea to the millions of homes trying to make it through the pandemic. If social scientists are right, there will likely be millions of people who continue to work remotely even after the end of the pandemic. This is not a temporary problem that is somehow going to go away.

It’s hard to think that the minimum acceptable definition of upload speeds should be anything slower than 25 Mbps. Assuming a robust WiFi network, that’s enough bandwidth for 3 – 4 adults and/or students to work from home at the time. So FCC, please reconsider the definition of upload speeds. If you stick with 3 Mbps upload as the definition of broadband it means you don’t support broadband networks that can deliver the speeds that the average households need.

Current News The Industry

CBRS Auction Winners

The FCC held a recent auction for the  3.5GHz Citizens Band Radio Spectrum (CBRS). The auction went for 76 rounds and raised over $4.5 billion for the FCC. This auction was unique in that spectrum was licensed at the county-level awarding up to seven licensed 10 MHz channels in each county. Each PAL (Priority Access License) is good for 10 years.

CBRS spectrum can be used in several applications. The spectrum has good field operating parameters and falls in the middle between the two existing blocks of spectrum used for WiFi. This makes the spectrum ideal for rural point-to-multipoint fixed wireless broadband since it can carry a decent amount of bandwidth for a decent distance. The best aspect of this spectrum is that it’s licensed and will largely be free from interference. For the same reasons, this is also a good spectrum for cellular data.

The biggest winner in the auction was Verizon which spent $1.89 billion on the spectrum. The company landed 557 PALs licenses in 57 counties. The company needed this spectrum to fill-in mid-range spectrum for 5G. Verizon has also recently announced a fixed cellular broadband product for rural homes and this spectrum could provide an interference-free way to deliver that product from rural cell sites.

As expected, Dish networks was also a big winner and will be paying $913 million for CBRS spectrum. As the newest nationwide cellular carrier, the company needed this spectrum to fill in the holes in the cellular spectrum it already controls. The other traditional cellular companies were a no-show. AT&T didn’t buy any of the CBRS spectrum. T-Mobile only purchased 8 PALs licenses in six counties.

The largest cable companies scored big in the auction. Charter bought $464 million of spectrum, Comcast is paying $458 million for spectrum, and Cox purchased $212 million of spectrum. As the newest entrants in the cellular business, Comcast and Charter have been buying wholesale cellular broadband from Verizon – this spectrum will let them shift to their own cell sites for a lot of cellular traffic. There is also speculation that cable companies might be planning on using the new spectrum to launch a fixed-wireless product in the rural areas surrounding their cable properties. Both Charter and Cox have entered the upcoming RDOF auction that is awarding $16.4 billion for rural broadband and the companies might be planning on using this spectrum to cover any areas they can win in that reverse auction.

One of the smaller cable companies, Midcontinent Communications, spent over $8.8 million for PALs licenses. Midco already won sizable rural grants to deploy 100 Mbps broadband in Minnesota and the Dakotas. This spectrum will help the company meet those grant pledges and perhaps allow it to pursue RDOF grants.

There were a few other large bidders. One was Nextlink which provides fixed wireless broadband today in Texas, Oklahoma, Kansas, Nebraska, Iowa, and Illinois. Windstream purchased over 1,000 PALs and the traditional telco is likely going to replace aging rural copper with wireless service, while also possibly be expanding into new service territories with fixed wireless. SAL Spectrum LLC won 1,569 PALs. This company owns numerous other blocks of spectrum and it’s not clear who the user of this new spectrum might be.

The biggest news is that the auction allowed smaller bidders to win licensed spectrum. There were 228 different winners in the auction, most of which are small WISPs, telcos, and electric cooperatives. These entities benefited by the FCC’s willingness to auction the spectrum at the county level. Most previous wireless spectrum was allocated using much larger footprints, which kept small bidders from acquiring spectrum.

Regulation - What is it Good For?

Penalizing Bad FCC Broadband Reporting

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

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

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

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

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

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

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

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

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

Regulation - What is it Good For?

FCC’s 2020 Look at Broadband Speeds

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

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

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

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

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

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

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

The Industry

Who’s Chasing RDOF Grants?

There is a veritable Who’s Who of big companies that have registered for the upcoming RDOF auction. All of the hundreds of small potential bidders to the auction have to be a bit nervous seeing the list of companies they could end up bidding against.

As a reminder, RDOF stands for Rural Digital Opportunity Fund and is an auction that starts in October that will award up to $16.4 billion in broadband funding. The money will be awarded by reverse auction in a process that favors faster technologies, but also favors those willing to take the lowest amount of grant per customer. The areas that are eligible for the funding are among the most remote places in the country, which is why the list of potential large bidders is puzzling.

There are some big cable companies on the list: Altice, Charter Communications, Cox Communications, Atlantic Broadband, Midco, and Mediacom Communications. These companies serve many of the county seats or other nearby towns to many of the RDOF areas. One has to wonder what these companies have in mind. The only one that has chased any significant federal grants in the past is Midco in Minnesota and North Dakota. Midco has been using grant money to extend fiber backhaul to connect its smallest markets, to build last-mile broadband in some tiny towns, and to build fixed wireless in rural areas surrounding its cable markets.

One has to wonder if the other cable companies have a similar plan. It’s incredibly inefficient to build traditional hybrid coaxial-fiber networks in rural areas, so it’s unlikely that the cable companies will be extending their existing networks. The RDOF auction is being done by Census blocks, which in rural areas can cover a large area. The winner of the auction for a given Census block must offer service to everybody in that block. I also have a hard time envisioning all of these big cable companies getting into the wireless business like Midco is doing, so their presence in the auction is a bit of a mystery.

Then there are the traditional large telcos including Frontier, Windstream, Consolidated Communications, and CenturyLink. These companies already serve many of the areas that are covered by the reverse auction. These are the rural areas where these companies have largely neglected the old copper wiring and either offer no broadband or dreadfully slow DSL. The minimum technology allowed to enter the auction must deliver 25/3 Mbps broadband. It’s almost painful to think that these companies would chase the funding and promise to upgrade DSL to 25/3 Mbps after these companies largely botched an upgrade to 10/1 Mbps DSL in the just-ending CAF II grants. The cynic in me says they are willing to pretend to upgrade DSL all over again if that means substantial grant money. I have to think that some of these companies are considering deploying fixed wireless. To the extent any of these companies is willing to take on new debt or use equity, they could also build fiber. None of these companies has built a substantial amount of fiber to truly rural places, but may these grants are the inducement they were waiting for.

Verizon and U.S. Cellular have registered for the auction. You have to think the cellular carriers will be deploying fixed cellular broadband like the 4G FWA product that Verizon just announced recently. These companies already have equipment on towers in many of the RDOF grant areas and would love to grab a subsidy to roll out a product they might be selling in these areas anyway.

Then there are the satellite companies SpaceX, Hughes Network Systems, and Viasat. Viasat has won federal grant money before for selling broadband from its high-altitude satellites. SpaceX is the wildcard since nobody knows anything about the pricing or real speeds they can provide. We know that Elon Musk has been lobbying the FCC to let him have a shot at the billions up for grabs in this auction.

There is another interesting wildcard with Starry. Their business plan is currently selling fixed wireless to large apartment buildings in center cities and they’ve developed a proprietary technology that’s perfect for that application. They must have something else in mind in chasing grant money in remote areas that are 180 degrees different than their normal business model. Starry founder Chet Kanojia is incredibly creative, so he probably has a new technology in mind if he wins auction funding.

There may be other big players in the auction as well since many of the registered bidders are participating under partnerships or corporations that are disguising their identity for now. I think one thing is clear and some of the rural ISPs and cooperative who think nobody else is interested in their markets will get a surprise early in the auction. These big companies didn’t register for the grant auction to sit on the sidelines.


AT&T Argues for Broadband Reform

Ed Gillespie, the Senior Executive Vice President of External & Legislative Affairs at AT&T posted a policy position on the AT&T website that argues for major policy reform to better bring broadband to low-income homes and rural areas.

It’s hard for any broadband advocate to not agree with the suggestions Mr. Gillespie is making:

  • He wants Congress to finish funding the new FCC mapping program to identify homes without access to broadband.
  • He supports additional broadband grant funding for programs like the $20 billion RDOF grants.
  • He supports Lifeline reform and says that it should be as easy for low-income homes to apply a Lifeline discount as it is to use a card to buy food from the SNAP program.
  • He thinks funding should be increased for the Lifeline program and should be funded by Congress rather than funded through a 26% tax on interstate telephony.

I hope AT&T is serious about these proposals because having them lobby for these ideas would help to move the needle on digital inclusion. It’s just odd to see these positions from AT&T since they have spent a lot of effort and dollars arguing against some of these policies.

Mr. Gillespie complains that a lot of the current $9.25 Lifeline discount program is used by MVNOs and other carriers that have not built networks. That’s an ironic argument for AT&T to make since the company has done it’s best to walk away from the Lifeline program. AT&T no longer offers Lifeline in 14 states – AL, AR, FL, IN, KS, KY, LA, MS, NC, NV, SC, TN, and WI. AT&T still participates in Lifeline in 6 states, but only because those states refuse to allow the company to exit the Lifeline program.

Of course, this would not be an AT&T policy paper if the company didn’t pat itself on the back a bit. Mr. Gillespie brags that the ISP networks in the country weathered the big increase in web traffic due to the pandemic even though predictions were made that networks would collapse. He claims that AT&T made it through the pandemic due to light touch regulation. The fact is, once it was understood that the new traffic on the web was coming during the daytime when the network wasn’t busy, I don’t know any network engineer who thought that the web would collapse. I also wonder why AT&T would claim to have weathered the pandemic well – I would challenge AT&T to bring forth happy customers using AT&T DSL and ask for their testimonials on how the AT&T network enabled multiple people to work from home at the same time.

Mr. Gillespie is also calling for an expansion of the concepts used in the RDOF grants. Those grants provide funding for new broadband networks in rural areas that have the worse broadband. Before supporting an expansion of that grant program, I think many of us are holding judgment on the RDOF reverse auction process. While I think it’s likely that there will be beneficial grants given to those willing to build rural fiber networks, I also fear that a huge amount of these grants are going to be wasted on satellite broadband or other technologies that don’t bring rural broadband in line with urban broadband. I’m not ready to bless that grant program until we see how the reverse auction allocates money. I also can’t help being suspicious that AT&T’s position in favor of more grants reflects a hope to win billions of new grant dollars.

Interestingly, even though he never says it, the reforms that Mr. Gillespie is asking for require new broadband regulation. I’m sure that Mr. Gillespie must realize that bills needed from Congress for these reforms are not likely to stop with just AT&T’s wish list. We are long overdue for a new telecommunications act that brings broadband regulation in line with today’s reality. The last such law was passed at a time when people were flocking to AOL for dial-up access. It’s highly likely that new telecom legislation is going to go beyond what AT&T is calling for. It’s likely that new legislation will give some broadband regulating authority back to the FCC and will likely include some version of net neutrality. It’s ironic to see arguments for a stronger FCC when the FCC walked away from regulating broadband at the urging of AT&T and the other giant ISPs. Perhaps even AT&T knows it went too far with deregulation.

Regulation - What is it Good For?

Time to Stop Talking about Unserved and Underserved

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Regulation - What is it Good For?

Regulating Cable TV versus OTT

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

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

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

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

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

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

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

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

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

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

Regulation - What is it Good For?

The FCC Finally Tackles New Mapping

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

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

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

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

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

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

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

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

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

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

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