Tag Archives: NRECA

NTIA Trying to Regulate Through BEAD

NTIA has circulated guidance to BEAD winners titled BEAD Subgrantees: Protect Your Rights. Most of the two-page document is fairly routine stuff, but it also includes a bizarre section discussing permitting. The overall tenor of the document is odd in that it invites an ISP to directly contact NTIA if it thinks the contract offered by a State Broadband Office contradicts NTIA policy.

The document starts with a reminder that States can’t engage in ratemaking and demand specific rates in a BEAD contract. NTIA’s position on the issue is not controversial since rate regulation was prohibited in the original IIJA legislation that created BEAD. What is unusual is to see NTIA making a big deal out of this topic. My guess is that the NTIA guidance is mostly aimed at New York, where large ISPs that won BEAD are also subject to a state law that mandates a cap of $15 per month for qualifying low-income subscribers. Perhaps NTIA is hoping to goad one of the large ISPs in New York to use BEAD as a chance to challenge the state law, although the Supreme Court has twice refused to accept challenges to the legislation.

The guidance also alerts ISPs that each state is required to create a permitting roundtable where ISPs that encounter delays in permitting can discuss delays and fees. NTIA also seems to be reminding ISPs that States are required to document any problems encountered in implementing BEAD projects in semi-annual reports.

Where I think NTIA went off the rails is a set of requirements related to permitting:

  • NTIA wants a 90-day shot clock for the approval or rejection of permitting requests.
  • Grant winners can demand a single, dedicated point of contact for broadband-related permits.
  • Permits must allow the construction techniques chosen by the grant winner.
  • Batch processing of permit requests must be allowed.
  • Grant winners must not be subjected to unnecessarily duplicative or burdensome permitting requirements.

I find these requirements to be odd since NTIA doesn’t have the regulatory authority to specify permitting rules. For the most part, States also don’t control permitting rules and processes, which are left up to local jurisdictions. It’s highly questionable in most States if the Broadband Office can even assert any real influence over permitting practices for State highways.

NTIA has no authority to demand a permitting shot clock. NTIA can’t mandate that localities accept construction plans from grant winners. For example, what if a grant winner wants to bury fiber one foot deep instead of the locally-demanded three-foot depth? There are plenty of localities that won’t allow large-scale construction using trenching with a backhoe to bury fiber. Many local jurisdictions might be skeptical of microtrenching. Most localities will expect BEAD winners to abide by the same rules that apply to other telcos and utilities.

The last bullet point might be the most troubling since nobody knows what a ‘burdensome’ permitting requirement is. Is NTIA planning to intervene in disputes over local permitting rules that a grant winner doesn’t like?

NTIA also wants States to agree that permitting fees must be set at an approximation of actual cost. This is something that Congress could tackle, but any federal law demanding this would be heavily challenged in court.

The requirement that will get the most pushback is the requirement that a grant winner that also owns pole becomes subject to state or FCC pole attachment regulation by accepting the BEAD grant. As a reminder, cooperatives and municipalities are not subject to most pole attachment rules. NRECA, an association of electric cooperatives, wrote this letter to Commerce Secretary Lutnick, warning that many cooperatives will walk away from BEAD awards rather than let themselves be subject to pole attachment regulations.

I have to wonder if any BEAD grant winner will actually complain to NTIA to try to get a State to enforce permitting requirements or fees. I have to think that a State’s reaction to such a complaint would be to put that grant project on hold until the issue is resolved, which could take years and could even run out the five-year BEAD timeline.

The funniest part about the drama related to permitting is that very few, if any, local rural jurisdictions will make it hard for BEAD winners to get permits. Rural counties want better broadband infrastructure, and most counties I know will bend over backward to speed up the process. These odd NTIA rules don’t address the real source of the real permitting problems, which are railroad crossings, bridges, and state and federal lands. I’m honestly scratching my head, wondering why NTIA wrote this guidance. But BEAD has been odd since the beginning, so I guess there is no reason to stop the oddness now.

A New Complaint About BEAD Maps

Earlier this month the National Rural Electric Cooperative Association (NRECA) made an ex parte filing with the FCC that warned that the current FCC maps do not reflect the reality on the ground of rural broadband. They warn that there are a lot of places that need broadband that will not be covered by BEAD. They warn that areas that don’t get funding now by BEAD will be left behind.

Anybody who reads this blog knows that I’ve been making this same argument for the last several years. As NRECA points out, the new FCC broadband maps are a big step up from the previous FCC mapping. The old maps reported broadband by Census block, and in doing so often showed an area as having good broadband when only a few places in the block had a faster technology.

NRECA points out that the fatal flaw in the new maps is that ISPs self-report broadband speeds and are free to report marketing speeds instead of something closer to what is actually delivered to customers. It was an interesting policy choice for the FCC to make since this doesn’t match what the FCC is doing elsewhere. For example, the FCC requires ISPs to report broadband speeds for each product on the new broadband labels. The rules for the labels suggest that ISPs should report speeds that have some basis derived from internal ISP speed testing. In my early examination of broadband labels, most ISPs are ignoring this requirement and claim the identical speed on the broadband labels that is reported on the FCC maps.

ISPs know the speeds they are delivering to customers. Most broadband networks have the ability to measure speeds from their core network to the customer location – a speed that doesn’t get influenced by the performance of WiFi inside of a customer premise.

I’ve seen numerous examples of speeds reported for the FCC maps that are far faster than speeds measured by speed tests. For example, I recently found a big telco reporting 100/20 Mbps for rural DSL, while Ookla speed tests show an average speed around 25 Mbps – and no speed test faster than 40 Mbps. I’ve seen the same thing for WISPs and FWA cellular broadband, where Ookla speed tests are far slower than what is being reported to the FCC. There are cable companies with no speed tests of upload speeds faster than 20 Mbps, which means their areas should be eligible for BEAD grant funding.

In its filing, NRECA suggested that the public should be allowed to take speed tests to report to the FCC. The FCC certainly has the ability to crowdsource speed tests since it does so for cellular broadband. Customers can take a cellular speed test using an FCC speed test app. I can’t think of any reason why the FCC couldn’t directly collect speed tests directly from customers using the same or a similar app. I’m also mystified why the FCC couldn’t partner with one of the big speed test sites like Ookla to gather the many millions of speed tests that are already being taken every day.

ISPs do not want customer speed tests to be part of the equation, and they have some valid arguments that the results of any given speed test can’t be trusted. Every ISP will tell you that a big part of the problem that customers have with broadband is the WiFi signal inside their home. They might have old or inadequately configured routers. They might be taking speed tests from a computer located far from the in-home router.

But interestingly, if you gather enough speed tests, a good picture of broadband performance emerges. I’ve always focused on the maximum speeds measured for a given ISP. If an ISP says it can deliver 100 Mbps or gigabit speed, then there should be some speed tests close to that speed. My experience is that looking at large numbers of speed tests will quickly identify ISPs who are reporting speeds far faster than what they are delivering.

To be fair to ISPs, speed tests can also show the opposite. I’ve seen ISPs that claim a speed on the FCC maps of 25 Mbps or 50 Mbps but are delivering much faster speeds.

The NRECA is absolutely right about the BEAD grants. There are a lot of rural areas that will be excluded from BEAD because of overstated broadband speeds. Broadband offices and the NTIA will say that there is a BEAD map challenge process to address this issue. But I could write a whole series of blogs describing the ridiculous steps that NTIA is requires to mount a successful map challenge for BEAD. Even if the map challenge process was reasonable, many local governments don’t have the resources or budget to mount a serious map challenge. This means that counties that were unable to mount a successful BEAD map challenge have a good chance of having locations improperly excluded from BEAD.

When the dust settles from BEAD grants, there are going to be a whole lot of rural neighborhoods that will not get a broadband solution – and they are going to be vocal about it.  My prediction is that this is going to end up being a few million such rural locations. As much as the industry wants to pretend that BEAD is going to solve the rural broadband issue, anybody who looks close at the FCC maps and the BEAD process knows this is not the case.