Regulation - What is it Good For?

Defining Affordable Broadband

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

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

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

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

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

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

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

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

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

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