Politics and the FCC Maps

Harold Feld of Public Knowledge wrote an interesting personal blog looking at the possibility that the FCC won’t be able to get the needed votes to approve the new broadband maps this fall, which would then put the $42.5 billion BEAD grants on hold. It’s an interesting speculation that, unfortunately, sounds completely plausible.

The blog dives deeply into the administrative rules at the FCC, and Feld explains in detail why the FCC must vote to approve the new broadband maps. There are no administrative alternatives to an FCC vote for approving the maps to use in the BEAD grant process.

That vote is where it gets interesting because that’s where politics and lobbying by the big ISPs come into play. Feld speculates that the FCC might not approve the broadband maps because all votes on similar matters over the last decade have gone entirely along party lines. If partisan voting sticks true for this issue, then a 2-2 tie would mean that the new maps would not be authorized – and without the approval of the new maps, the $42.5 billion of BEAD grants would be on hold.

I’m sure that most people don’t realize how partisan the FCC has become. The FCC routinely approves a lot of administrative issues, often by unanimous votes. The agency has also been approving more complex issues like issuing spectrum – which is not politically controversial.

But the 800-pound gorilla in the room is the question of whether ISPs should be regulated. The big carriers expended huge lobbying efforts and contributions to politicians to get the Ajit Pai FCC to kill Title II regulation. The big ISPs are like the largest companies in every industry in hating to be regulated. But big ISPs are somewhat unusual in that they have effectively been able to largely neuter the FCC, meaning that ISPs are no longer regulated for issues that matter.

The biggest fear the big ISPs have is the idea of price regulation. As the prices for broadband have climbed out of the reach of affordability for many families, the ISPs have to know that a strong FCC would be calling them to task for their rates. The big ISPs must have collectively cringed recently when the NTIA’s NOFO for the BEAD grants talked about requiring a ‘middle-class rate plan’, whatever that is.

The big ISPs know that allowing a fifth Commissioner selected by a Democratic administration will mean a renewal of something like Title II regulation. Staving off regulation is priority one, two, and three on the big ISP wish list. It probably seems unbelievable to the average person that we’re a year and a half into a new administration and we haven’t replaced the outgoing Ajit Pai. But it seems like donations from the big carriers have been effective in squelching a vote to nominate Gigi Sohn.

The billion-dollar question that Feld asks is if Congress will care more about continuing to kill chance of being regulated versus awarding grants to bring broadband to rural America. As Feld points out, the big telcos aren’t enthusiastic about grants that will finally overbuild their historic service territories and kill the remaining revenues, so it’s possible that they are fine with delaying the BEAD grants.

The most important question nobody will be able to answer until this fall is if it will really require five FCC Commissioners to approve the new maps. It’s certainly possible that one or both of the Republican Commissioners could vote to approve the maps, making Feld’s speculation moot. There will certainly be gigantic political pressure to approve the maps – there is a huge groundswell of enthusiasm from communities that believe this is their chance to get broadband. But to a large degree, sitting FCC Commissioners are shielded from direct political pressure.

I know that in most of rural America that broadband is not a partisan issue. I’ve talked to countless county officials who tell me that broadband is the most talked-about local issue. Unfortunately, local sentiments often don’t carry up to DC. If the existing Commissioners continue to vote along partisan lines, as has happened regularly for the last decade, then the only way to break that tie will be the approval of the fifth Commissioner. I don’t have any better crystal ball than anybody else, but the scenario painted by Feld seems far too plausible.