Mapping Broadband: What Does It Mean for Service to Be “Available”?
NTIA has now given 48 states the green light to start their required BEAD challenge process to refine the list of locations that will be eligible for BEAD funding. The starting point for the states is the FCC’s National Broadband Map, based on its Broadband Data Collection (BDC), with the state-run challenge process providing stakeholders the opportunity to make updates and corrections.
The FCC fleshed out the details of its broadband data collection in 2020-early 2021. When the FCC adopted its BDC rules, no one anticipated that so much money would ultimately be riding on what it means for broadband to be “available.” The landmark Infrastructure Investment and Jobs Act, which decreed that the FCC’s National Broadband Map would be the basis for allocating $42.5 billion in BEAD funding among the states and territories, didn’t become law until late 2021.
As I’ve explained in FCC comments, the current system is stacked against parties seeking to challenge areas that are reported in the BDC as served. Even though NTIA is giving states more flexibility to develop their own ground-truth that varies from the FCC map, it still is hard to mount a successful challenge. The burden is on the challenger to present evidence that something doesn’t exist.
In recent months, there have been press reports that certain companies are reporting large areas of a given state as “served,” and local governments are finding it difficult to collect the necessary evidence to challenge such assertions in the state-run BEAD challenge process. In situations where a service provider reports service is available, but never has had any customers in the general area — doesn’t that make you wonder if service truly is available in any meaningful sense of that word?
Even though many states have adopted the option to shift the burden of proof to the reporting provider if a specified number of challenges are filed in a given area, flipping locations to “unserved” on a broad scale remains hard to do as a practical matter.
While NTIA is allowing challengers to submit speed test data that meet defined requirements (unlike the FCC challenge process), challengers can’t submit speed tests if no one is actually subscribing to the broadband service the service provider is reportedly offering.
Loophole #1
If a company advertises on its website that it’s offering a particular speed to specific communities, and then reports in the FCC’s Broadband Data Collection that service is available there — that meets the literal terms of the current FCC reporting requirement. The FCC isn’t independently policing whether broadband carriers are making false advertising claims.
Loophole #2
Under the terms of the Broadband DATA Act, service providers report a location as “served” if they can complete a routine installation within ten business days. The problem with this standard is that even though it may be technically feasible to install service to a specific location within ten days, there are no guardrails that require service providers reporting availability across a broader area to be able to initiate service to all locations in the area within ten business days. As a practical matter, if a service provider does not already have significant facilities (wireline or wireless) in a geographic area, it would need to augment its network to be able to provide service to everyone in the area. Because there are no requirements for universal service embedded in the framework established in the Broadband DATA Act, companies are free, for instance, to report an entire county as served even though they could not, as a practical matter, provide broadband to all residents in the county within ten days if a large number of households were to request service at the same time.
How Did We Get Here?
The BDC reporting regime is a more granular, location-specific extension of the FCC’s longstanding Form 477 reporting regime. FCC Form 477 was originally adopted in 2000 as a way for the FCC to collect information to prepare its annual report to Congress on whether “advanced telecommunications capability” is being deployed on a reasonable and timely basis. When the reporting requirement was originally adopted in 2000, and then modified by the FCC in 2004, and then again in 2008, there was no explanation in the Order voted on by the full Commission of what it meant for service to be “available.” There was only a passing reference in the Order to “service being offered” and “homes passed.” The initial decision to require companies to report based on advertised speed was made by FCC staff in the data specifications for reporting when they originally implemented the FCC Form 477.
Over the years, the FCC narrowed the geographic unit for reporting — from reporting at the zip code level, then at the census tract level, and then finally the census block level. When the FCC amended its Form 477 data collection in 2013 to require the reporting of availability at the census block level, that was the first time the full Commission first explicitly adopted a requirement in its rules that broadband service providers report the maximum “advertised” speed. In the 2013 Order, the FCC discussed whether it should require the reporting of actual, instead of advertised speeds, but concluded it was “not appropriate or feasible to collect actual speed information from broadband providers via Form 477.”
After Congress passed the Broadband DATA Act in 2021, the FCC finalized rules for its new location-by-location broadband data collection. Those rules required broadband service providers to report “maximum advertised download and upload speeds for fixed broadband internet access service available in an area.” Again, there was no discussion in that FCC Order of what specific conditions must be met in order to “advertise” that service is “available.” In a single sentence, the FCC dismissed the argument of commenters who urged it to consider whether actual speeds were lower than advertised speeds:
We believe that the focus of the Digital Opportunity Data Collection is to provide more granular and accurate information on where broadband service, at a reported maximum speed, is available, not to address cases where the throughput a broadband customer experiences varies from the advertised speed of the service purchased.
In the 2021 Order, the FCC pointed to the existence of the 2018 Internet Transparency rule — which requires broadband providers to make disclose “[a] general description of the service, including the service technology, expected and actual access speed and latency” — as grounds for not requiring actual speeds to be reported on a location-specific basis in the BDC.
And that’s how the FCC created the regime that governs its National Broadband Map.
A Different Paradigm for Reporting Service Availability
The FCC could have put more teeth into its requirements for certifying broadband service is “available.” Indeed, it had done so in the past.
Back when I was at the FCC overseeing the Universal Service Fund (USF), I oversaw the challenge processes that occurred for the Connect America Fund Phase I and Phase II.
The purpose of that challenge process was to determine which census blocks were “served” by an unsubsidized competitor offering voice and broadband and therefore not eligible for the Connect America Fund.
Back then, there was no location-by-location reporting of broadband availability — broadband availability was reported at the census block level. If a competitor offered service to just one location in a census block, it reported broadband availability in that census block.
In a 2014 Public Notice, we articulated standards in advance of the upcoming Connect America Fund challenge process of what it meant for service to be available and explained how we would evaluate different types of evidence:
For purposes of the Phase II challenge process, in order to truthfully certify that a census block is “served,” a provider must meet three criteria:
1) The provider must actually be offering voice and broadband service in the census block. “Offering” the service is more than being capable of offering service. For purposes of the Phase II challenge process, a provider is “offering” voice and broadband if it holds itself out to the public as able and willing to provide voice and broadband to a given location. The Bureau will examine this from the point of view of the consumer: whether a consumer, examining the information available to her, would reasonably believe that she could order voice and broadband service from the provider at her address.
2) The provider must have voice and broadband-capable physical assets (wireline or wireless) in or adjacent to the census block at issue.
3) The provider must already have customers in that census block, or previously had customers in that census block. If the provider has no current customers, but previously had customers, it must be able and willing to provision voice and broadband service to customers in that census block within seven to ten business days without an extraordinary commitment of resources and without any special construction charge or construction fee to consumers in that block.
In order to certify that a block is served, the party making the certification must have a factual basis to conclude that each of these criteria is satisfied and be prepared to produce additional evidence to substantiate its claim to Commission staff upon request. If these criteria are not met, it cannot make the requisite certification. To certify falsely in this context would subject the party to potential enforcement action.
In other words, for the FCC’s Connect America Fund, in order for service to be deemed available and thereby block USF funding, a broadband competitor had to have physical plant (whether wireline or wireless) in the general vicinity and either a current or past customer in that area. A service provider couldn’t certify a census block was served if it never had had a customer in that census block. And, if a service provider’s online service availability tool said “service not available” for a particular address, that address was deemed unserved.
Could the FCC Change Its BDC Reporting Requirements Now to Close These Loopholes?
Yes, theoretically, but it would take time, even if the FCC were fully on board with changing the rules in this fashion.
For the benefit of those not familiar with FCC regulatory processes, to change the current BDC rules would require the FCC to initiate and complete a rulemaking — a process that typically takes many months, even years. The FCC simply cannot change its reporting requirements overnight to require service providers to report typical or actual speeds, instead of advertised speeds, on a location-by-location basis. I suspect many broadband providers would protest if the FCC were to put more guardrails on when companies are permitted to certify they are capable of provisioning service in ten business days.
So Where Do We Go From Here?
We are barreling down a pathway to a world in which there will be two alternative versions of broadband availability in each state: the FCC’s National Broadband Map’s version of reality and a different state version, which will determine which locations are eligible for BEAD funding.
Some states have already closed their BEAD challenge portals, others are currently accepting evidence in their challenge processes, and many more are expected to start their challenge process shortly, now that NTIA has signed off on Volume I for virtually all of the states.
States should employ all tools at their disposal when adjudicating challenges to service availability. They may feel their hands are tied, but NTIA has given them more flexibility than the FCC’s BDC challenge process to consider other data when refining their inventory of eligible locations.
States could, for instance, look to the FCC’s Connect America Fund challenge precedent for what it means for service to be available when conducting their own state-run BEAD challenge process. Companies like Ready.net have released alternatives to the FCC’s National Broadband Map to help interested stakeholders pinpoint areas that need funding. States that have a solid factual basis for believing service is not available have the ability to ask NTIA for a waiver to allow them to consider specific locations as unserved and therefore eligible for funding.
Politicians at the federal, state and local level get frustrated when they hear residents are deemed “served,” and yet those people don’t feel they have broadband service available to them.
Let’s not squander this opportunity.
