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Four Failures of the FCC’s Broadband Policy, According to University of Virginia Professor

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Screenshot from the presentation

November 12, 2020 — The failure to connect the rural-urban digital divide in the United States is not one of technology, but of markets, politics, and policy, argued Christopher Ali, associate professor in the Media Studies Department at the University of Virginia, during a virtual presentation which aired Tuesday as part of a global media policy seminar series.

“There is an ongoing political and policy conversation claiming it wants to amend the digital divide, but none of the ground work is being done,” Ali said, “How can we explain these discrepancies?”

Ali wrestled with multiple explanations for the persistence of the digital gap, ultimately finding that broadband policy in the U.S. is defined by “the politics of good enough,” which encourages the fast deployment of outdated technologies and benefits the largest telecommunications and satellite companies.

The FCC has failed to exert authority and to communicate with sister agencies

Ali recognized four main failures in broadband policy, the first being a failure of management.

“The Federal Communications Commission lacks the authority to really confront the challenges posed by digital divide,” said Ali.

He highlighted that the U.S.’s polycentric broadband regulatory environment further increases the complexity of oversight, as the FCC is not the only federal agency which plays a role in regulating broadband policy. Other supervisory bodies include the U.S. Department of Agriculture and the National Telecommunication and Information Administration.

“If you’ve been to Washington, D.C. you know that the FCC and the USDA are physically located roughly one or two blocks apart from each other,” said Ali, “but in terms of policy coordination they couldn’t be farther apart.”

Ali believes “the U.S. ends up with legitimacy issues,” as a result of the government’s failure to coordinate.

In order to remedy these management issues, Ali recommended that the incoming presidential administration reinstate net neutrality regulations and mandate coordination between the USDA, the FCC, and the NTIA.

“Without net neutrality the FCC has very little power to tell corporations what to do,” said Ali, saying restoring net neutrality would allow the FCC to become “the watchdog and champion of broadband deployment that we want it to be.”

“I’m hoping this will be a major priority of our new administration,” he said.

An outdated definition of broadband

The second failure of broadband policy Ali finds to persist, is a failure in ‘meaning’.

Ali pointed to problems with the FCC’s technologically-neutral funding policies and outdated broadband definition, set in 2015, of 25 Megabits per second (Mbps) download/3 Mbps upload.

“The definition is set to privilege the cable industry,” said Ali, explaining “that’s what coaxial cables can do,” offer blazing fast download speeds, but ineffectual, congested upload speeds.

Ali argued that the 25/3 Mbps definition of broadband does not reflect Americans’ current broadband needs or usage, and further, when coupled with the agency’s policies of technological neutrality “favors inadequate technologies provided by incumbent telecommunications and satellite companies.”

“The 25/3 definition and the FCC’s stances of technological neutrality, allowed ViaSat, a satellite provider, to be one of the greatest winners in the FCC’s 2019 reverse auction,” said Ali.

He recommended the Biden FCC raise the definition of broadband to 100/100 Mbps, to drive technological innovation, and encourage the deployment of fiber resources.

Broadband mapping continues to be a serious problem

The third broadband policy failure Ali highlighted is a failure in mapping.

The Virginia professor blamed the standards of Form 477, a broadband mapping form that has become infamous in tech circles for breeding vastly overstated data, as the root cause of the mapping fiasco.

Under Form 477, “so long as one building in a census block has broadband, everyone within the census block is reported to have it,” said Ali. Further, the form allows “ISPs to report advertised speeds, and not actual speeds.”

Another reason for the inflation of Form 477 data, is that satellite coverage, which offers notoriously unreliable connections even on the clearest of days, is included in the FCC’s broadband map data.

“FCC numbers are grossly inflated,” said Ali. “A U.S. Telecom Study found 38 percent more broadband deserts than the FCC reports.” Ali detailed the real-life consequences of the inflated data, by reporting the results of a case study he conducted on Louisa County, Virginia. The central Virginia county is ineligible to apply for any federal broadband loans or grants, due to the inflated speeds satellite and cable providers report to the FCC.

A failure of federal funding

The fourth and final broadband policy failure Ali brought attention to is money.

According to Ali, money from the two major sources of federal broadband funding, the FCC’s Universal Service Fund and the USDA’s Rural Utility Service, tends to favor incumbent providers as recipients.

“Federal money from the FCC’s Connect America Fund was granted to the nine largest telecommunications companies,” said Ali, including AT&T, Frontier and CenturyLink.

The companies had minimal buildout requirements, and as they were given a broadband threshold of only 10/1 Mbps to meet, most of the incumbents choose to deploy DSL, rather than fiber.

According to Ali, two of the funding recipients, CenturyLink and Frontier, did not live up to build out potential, yet “neither company was punished for it, and they are still eligible for more money.”

Ali called for the next FCC to punish companies for failing to deliver and end the tradition of incumbent favoritism.

An upcoming book on rural broadband

If you’re left wondering, “where exactly does the 6 billion dollars the federal government spends annually on broadband go?” you’re not alone. In his upcoming book Farm Fresh Broadband, which will be published by MIT Press in 2021, Ali makes an effort find out.

In order to write the book, Ali analyzed over 10,000 pages of policy documents from 2009 to 2020 and conducted a 3600-mile road trip across the United States, during which he spoke with anyone and everyone who would talk to him about broadband, from elected officials, farmers, and librarians, to people in grocery stores.

Farm Fresh Broadband not only attempts to humanize, and put a face to, policy, by understanding how broadband policy is lived and experienced in rural America, the book further unpacks the politics of broadband policy, asking why millions of rural Americans lack broadband access and why the federal government, and large providers, are not doing more to connect the unconnected.

FCC

Housing, Public Interest Groups Oppose Multitenant Exclusivity Agreements

The FCC is looking at how to promote broadband competition and access in buildings.

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Photo of Jenna Leventoff from Internet Law & Policy Foundry

WASHINGTON, October 21, 2021 – Opponents of exclusivity arrangements that give tenants of multitenant buildings less choice of internet service provider are urging the Federal Communications Commission to eliminate all manifestations of these contracts that they say harms competition and locks landlords into burdensome long-term contracts.

While the FCC has previously banned exclusive access agreements that granted a single provider sole access to a building, it did not do so for exclusive wiring, marketing and revenue sharing arrangements. That means third party service providers cannot share the building wires with the telecom with that privilege and cannot market their services to the building’s residents.

The FCC launched a comment period in September to field arguments about what to do with these holdout issues that gave priority to ISPs. In an early submission, the internet and television association NCTA said the commission should deny all broadband providers exclusive access to these buildings, but not exclusive wiring agreements.

Internet and competitive networks association INCOMPAS said in its submission that the competitive environment has continued to suffer due to these exclusive deals and, in the case of retail shopping centers, their deals have been extended over the “last several years.”

It is asking for a complete ban on the wiring, marketing and revenue sharing arrangements, which they say “make it tougher for new entrants to effectively compete in MTEs.

“Competitive providers are still asked to participate in revenue sharing arrangements or are routinely denied access to MTEs because of exclusive wiring or marketing agreements,” INCOMPAS said, adding consumers and businesses “lose out on the faster speeds, lower pricing, and better customer service that competitors offer.”

Public Knowledge similarly said there is a lack of competition emerging from these practices that is increasing prices and restricting choice for tenants.

“Although the FCC has banned explicit exclusive agreements in multi-tenant environments (MTEs) such as apartment, condos, and office buildings, landlords and internet service providers have exploited loopholes to nevertheless create de facto monopolies in buildings,” said Jenna Leventoff, senior policy counsel at Public Knowledge.

The group is asking for a ban on “all types” of these arrangements that “negatively impact consumer choice, ensuring all ISPs have access to a building’s wiring regardless of the owner, creating a ‘rocket docket’ to quickly adjudicate supposed violations, and creating a single regulatory regime for both commercial and residential MTEs.”

In a joint submission on Wednesday, Consolidated Communications Holdings and Ziply Fiber said they “often confront such anti-competitive agreements,” with revenue sharing and marketing arrangements being the most “prevalent and troublesome.

“In practice, these agreements frequently work together as a complete bar to competing providers, giving the incumbent broadband provider a de facto exclusive service agreement with respect to an MTE,” the submission said, alleging MTE owners will “explicitly cite their lucrative revenue sharing agreements with an existing provider as their reason for not allowing our companies to access their buildings” and so to not to lose out on that compensation.

Harm on building owners

For the Stewards of Affordable Housing for the Future, exclusive wiring arrangements have not only limited choice for residents, but it has allegedly locked housing providers into “long-term onerous contracts that prohibit them from pursuing connectivity solutions, such as owner-provided broadband, at their properties.”

Members of the affordable housing group are recommending the FCC impose “reasonable standards” on such agreements, which require ISPs to offer low-cost programs or owner provided broadband at a competitive cost and give landlords an option to exit or renegotiate a contract after a certain time.

The FCC’s look into the issue comes after a bill, introduced on July 30 by Rep. Yvette Clarke, D-New York, outlined plans to address exclusivity agreements between residential units and service providers, which sees providers lock out other carriers from buildings and leaving residents with only one option for internet.

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FCC

FCC Votes on Proposals Ranging From Emergency Response to SIM Swap Fraud in Open Meeting

The agency held an open meeting Thursday to hammer out votes on a range of issues.

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Acting FCC Chairwoman Jessica Rosenworcel.

WASHINGTON, September 30, 2021 — The Federal Communications Commission voted in an open meeting Thursday on several items, including expanding the E-Rate program and addressing SIM swap fraud and robocalls.

The commission voted to increase backup power to networks in case of emergencies and natural disasters and update outage reporting requirements. This follows an aggressive response from the agency during Hurricane Ida. The federal government lost $284 million of productivity during the winter storms last year.

Targeting robocalls from overseas, the FCC passed a set of rules for gateway voice service providers. Gateway providers will be asked to block calls from numbers the FCC lists, to authenticate caller ID and to submit to the FCC a certification of the practices they are using to block robocalls. This follows the June 30 deadline for large voice service providers to implement the STIR/SHAKEN regime, which requires telecoms to work to limit robocalls and ID spoofing or face fines and penalties.

In an effort to reduce SIM swapping and port-out fraud, rules were proposed which would require carriers to adhere to a set of secure methods of authenticating the identity of a customer before moving a customer’s phone number to another carrier or device.

SIM swapping is the act of identity theft whereby a person convinces a wireless carrier to transfer a victim’s cell service into the thief’s possession. Port-out fraud is when the thief creates an account with a new carrier and convinces the victim’s carrier to port out the victim’s service to the new carrier.

The notice also proposes that customers be alerted immediately whenever a SIM change or port request is made under a customer’s identity and account. FCC Acting Chairwoman Jessica Rosenworcel quoted senator Ron Wyden, D-Oregon, stating that “consumers are at the mercy of wireless carriers when it comes to being protected against SIM swaps.”

The FCC also updated the definition of library to include tribal libraries for use with their E-rate program, following a 2018 law from Congress. Many tribal libraries under the law were excluded from the program, which subsidizes broadband for schools and libraries, for over 20 years. Only 15 percent of tribal libraries reported having received E-Rate support.

The FCC also adopted and made transparent a series of questions that will be asked of foreign-owned companies wishing to participate in the US telecommunications market.

Questions include whether the applicants or investors have been charged with felonies, been subject to penalties for violating regulations of the US government, have undergone bankruptcy, are on the Specially Designated Nationals and Blocked Persons list and more.

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FCC

FCC Commissioner Simington Says Universal Fiber to the Home Can Wait

Simington also raised idea of Big Tech contributing to Universal Service Fund.

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FCC Commissioner Nathan Simington.

WASHINGTON, September 29, 2021 – Federal Communications Commissioner Nathan Simington said Tuesday that adoption issues for fiber is delaying the need to make universal fiber to the home a priority right now.

“I think we can push back on fiber to the home universally, at least in noting that there are edge cases and adoption issues there and that some degree of wireless is going to have to be part of the broadband future,” Simington said in a one-on-one conversation with the Internet Innovation Alliance.

A large part of the discourse surrounding the future of broadband expansion in the country is what kinds of technologies are most prudent to ensure connectivity now and scalability in the future. The Wireless Industry Association has pressed the fact that multiple technologies, including wireless, have a play in broadband’s future, while the Fiber Broadband Association and others have said fiber buildout is the best, most scalable technology.

The last mile, where the cable physically attaches to the home or business, was said at the Digital Infrastructure Investment conference this week to be a goal for broadband expansion.

But Simington said that while fiber is a “robust technology,” there’s a chunk of Americans that may not want it.

“I’m going to go out on a limb and say that there are some users who are not particularly interested in fiber,” Simington said. “That might be people who are, for example, device-only users and they don’t want a home broadband connection — that’s about 20 percent of the national population (of broadband users), although the question of want is sort of up in the air.

“Obviously to a person who is device-only, the only use that fiber would have would be to provide hotspot. And if you’re spending your entire day out and about working, what matters to you is having adequate wireless coverage in your area,” he added.

Simington touches on Universal Service Fund

Modernizing the Universal Service Fund has been one of the hot topics for broadband this year. The fund, which extends basic telecom services to all Americans, has been called unsustainable due to its reliance on shrinking voice revenues.

Some have suggested that the fund’s reliance be wholesale replaced with general taxation from Congress, while others have said that the fund’s revenue base should be extended to include the increasing broadband revenues.

Simington prefaced his comments by saying he didn’t want to get ahead of Congress, which would set the parameters of a new regime, but raised previous recommendations – including from FCC Commissioner Brendan Carr – that part of the money can come from big technology companies, like Facebook and Google.

“We might also say that there are companies that have built their model on there being universal broadband and have been the beneficiaries of the buildout without having to do much to contribute to it…that’s something that has been raised on both sides of the aisle,” he said.

He added that another approach “would simply be to say that broadband is essentially the equivalent of a telephone service back in the day and therefore we are going to put it on everyone’s broadband bill instead of on the relatively small installed base of phone line subject to the USF. That would certainly be one approach. It would smooth things out somewhat, it would presumably broaden the base very substantially.”

In any case, Simington said the USF is “absolutely vital” and that it’s failure would be “at minimum…immensely disruptive.”

Spectrum strategies and future technologies  

In his roughly hour-long chat, Simington touched on a myriad of other issues before the FCC, including the future of satellite technologies, spectrum strategies, and funding for programs to deliver telecommunications services to all Americans.

The commissioner noted that the FCC is prioritizing clearing spectrum for technologies including the next-generation 5G networks, and that the agency is looking to “squeeze every drop” of mid-band frequencies for that end. The FCC has already held a number of auctions for mid-band spectrum, including its massive C-Band auction.

FCC Acting Chairwoman Jessica Rosenworcel said earlier this year that the mid-band spectrum is a priority for the agency over millimeter wave spectrum to close the digital divide.

Simington also said spectrum sharing will increase as technological advances are made. The FCC is fielding comments about how to handle the 12 GHz spectrum band, which is effectively pitting satellite providers who say it can’t be shared and 5G providers who say that it can.

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