Challenges to Broadband Grants Are Predatory

By Doug Dawson, Jan 18, 2022 | Orginal POTs and PANS article here.

One of the most annoying aspects of the current federal broadband grants is the ability of incumbent ISPs to challenge the validity of grant requests. In the typical challenge, the incumbents claim that they are offering fast broadband and that an applicant should not be able to overbuild them.

This is another issue that can be laid squarely at the feet of the lousy FCC broadband maps. ISPs are largely free to claim any broadband speeds they want, and grant challenges give them a lever in situations like these grants. The challenges put a burden on anybody filing for a grant since they must somehow prove that incumbent broadband speeds are slower than 25/3 Mbps.

This is not new behavior by the incumbents. You might recall that before the RDOF auction in 2020 that Frontier and CenturyLink together tried to claim they were delivering speeds of at least 25/3 Mbps to tens of thousands of additional Census blocks. The goal was to eliminate these locations from the RDOF auction so that the telcos could preserve their broadband monopoly. The FCC largely rejected the last-minute changes by the telcos. There were already huge areas where telco speed capabilities were overstated before RDOF. The result was that a huge number of Census blocks were incorrectly kept out of the RDOF auction.

A recent article by Karl Bode for Community Networks highlights some specific examples of challenges bogging down the current round of NTIA broadband grants. He cites the example of a grant application made in Grafton County, New Hampshire, where the incumbents challenged the speeds for 3,000 Census blocks in a grant covering 4,000 blocks.

Grafton County had collected speed tests that showed that existing broadband speeds are mostly far below the 25/3 Mbps threshold. But this still puts the burden on the grant applicant to somehow document broadband speeds for each of the many Census blocks. The incumbent ISPs are using the challenges to weaponize the lousy data included in the FCC’s broadband maps.

This is often a ludicrous situation. Applicants like Grafton County are seeking to build fiber broadband because it has already heard repeatedly from residents about the poor broadband in the area. There are easy and obvious fixes to this. One simple fix would be that grants that ask to build fiber over existing DSL should be free from challenges. There is no place in rural America where DSL is delivering adequate broadband.

Another easy fix would be to stop talking about 25/3 Mbps as a meaningful definition of broadband. If these grants only allowed challenges for claims of 100/20 Mbps, then all of the challenges from telcos would be neutered. But there would still be battles like seen by Grafton County, where the cable companies are delivering slow speeds and challenging the grants. Setting the definition of broadband to a faster speed, even if only for the purposes of these grants, would eliminate the wasted energy being taken in handing out grant funding. The folks taking the most of brunt of these challenges are the folks in the various broadband grant offices. The shame of the challenge process is that there probably are some legitimate challenges being made, but they get lost in the huge volume of harassment challenges.

Unfortunately, these challenges are in place for a reason that surprises nobody. When the legislation enabling grants comes through Congress, the incumbents get to sneak innocuous-sounding language into the grant rules that is then manifested in chaos during the grant process. Unfortunately, the upcoming BEAD grant rules include a challenge process, so we’re going to get to see this process repeated. If there were a huge number of challenges in the $288 million NTIA grant program, it’s not hard to imagine what we’re going to see with the $42.5 billion BEAD grant program that’s granting 150 times more in funding.