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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that broadband policy in the U.S. is defined by “the politics of good enough,” which encourages the fast deployment of outdated technologies and benefits the largest telecommunications and satellite companies.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

Broadband Labels Should Include Practical Applications of Internet Packages: MIT Researchers

The FCC’s broadband label might include the number of movies one can watch at a time with a certain plan.

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Photo of MIT's David Clark used with permission

WASHINGTON, September 19, 2022 – The Federal Communications Commission’s upcoming broadband transparency labels should include “interpretive” information that helps consumers understand the practical implications of their internet performance, such as the number of movies they can watch at a time, according to researchers Friday at the Massachusetts Institute of Technology.

As directed by Congress in the Infrastructure, Investment and Jobs Act, the FCC is currently working on a “label” service providers will be required to fulfill that features details of broadband service plans, including monthly price, typical download and upload speeds, latency, packet loss, and other relevant information. The labels, which must be finalized by November, are meant to help consumers make a more informed decision when choosing an internet plan.

Because consumers are often unaware of how aspects of network performance affect the user experience, David Clark and Sara Wedeman of MIT’s Computer Science and Artificial Intelligence Laboratory said Friday at the TPRC 2022 conference that simply displaying technical metrics – e.g., an average upload speed of 20 Megabits per second (Mbps) – is unlikely to facilitate better user decision making.

The pair recommends the FCC adopt and require of service providers the equivalent of a nutritional label’s daily value field: a “Satisfactory Service Label.” Just as the daily value field makes complicated nutritional information actionable for the average consumer, the SSL will clarify how the technical metrics of an internet package affect performance, Clark said.

“One can propose a somewhat simple SSL for download speed by noting that for each simultaneous HD stream, no more than…about 9 mb/s is necessary. One could probably watch 3 HD streams at once over a 25 mb/s service,” said the paper on which Clark and Wedeman’s TPRC presentation was based.  

Difficulties in the labeling process

Paroma Sanyal and Divya Goel of the consulting firm Brattle Group also presented a paper on broadband labeling at TPRC. They argued that mandatory labeling will likely lead to lower prices and higher quality internet plans but also presents economic and legal risks if implemented incorrectly. Sanyal said that the standardized labeling regimes often introduce compliance costs and harm innovation, recommending instead a simple, clear system to minimize the emergence of unintended consequences.

Sanyal’s and Goel’s paper – coauthored with the Brattle Goup’s Coleman Bazelon – argues that the FCC’s current guidance doesn’t provide a specific definition of “typical” network performance, leaving much interpretation to broadband providers.

The paper also notes a multitude of technical factors outside the provider’s control that could affect performance. “For fixed broadband factors such as the vintage of equipment on the consumer premises…for mobile broadband, the vintage and type of handsets, weather, and location of the consumer are important,” the paper reads.

“As an illustration, typical speeds in a DC neighborhood may not be the typical speeds in a Baltimore neighborhood, which begs the question of how geographically targeted such labels should be, and, of course, the associated costs,” the paper adds.

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FTC

FTC Forum Hears Evidence that U.S. Should Follow European Union Privacy Model

The agency is proposing to use its own authority to regulate tech platforms for their ‘commercial surveillance’.

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Photo of Digital Content Next CEO Jason Kint from C-SPAN

WASHINGTON September 15, 2022 – The Federal Trade Commission should consider adopting standards established by the European Union’s General Data Protection Regulation to force Big Tech platforms to consent to the use of their user’s personal information, according to the CEO of a digital content trade organization.

The FTC proposed last month to use its authority under Section 18 of the FTC Act to bring “commercial surveillance” – the act of entities collecting personal information and selling them to third-party data brokers – under its authority to further regulate technology platforms. Section 18 is a statute of the FTC Act that grants the commission the authority to implement trade regulation rules for businesses that use tactics that are considered “unfair” or harmful to consumers.

Digital Content Next CEO Jason Kint said during an FTC public hearing on the matter on September 8 that the EU’s GDPR model provides an established practice of requiring companies and organizations to get consent to the use of their data in these contexts.

“Having a pop-up come up [for consent] every time you visit the site…that’s entirely in line with users’ expectations,” Kint said. To comply with GDPR principles, websites shown to users in the United States must ask visitors if they consent to the collection of their data in part to cater certain products to them.

“The user doesn’t want it to happen where their data is being tracked by third parties,” Kint said.

“So, if you’re the party that they’re choosing to interact with for service, providing them that data is very different.”

In August, the FTC announced an rulemaking to consider commercial surveillance as a Section 18 violation of the FTC Act. It its notice seeking comment, the FTC asked questions about what companies should disclose, who would administer the disclosure agreements, and if the FTC should impose limitations on the mechanisms companies use to hide their surveillance practices.

On July 20, the Senate Commerce Committee passed comprehensive privacy legislation a restricting collection and transfer of personal data of U.S. citizens without consent.

The measure has not yet passed the House, but in responding to the August announcement, Energy and Commerce Committee Chairman Frank Pallone, D-N.J., said that it is the responsibility of Congress, not the FTC, “to pass comprehensive federal privacy legislation.”

There are currently more than 120,000 comments on this issue. The FTC is still collecting public statements on this issue until October 21.

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FCC

Library and Education Technology Groups Pan FCC Proposal for New E-Rate Procurement

Responders fear that updating the E-Rate process will increase complexity for applicants.

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Photo of John Windhausen of Schools, Health & Libraries Broadband Coalition

WASHINGTON, August 26, 2022 – Responders to the Federal Communications Commission’s proposed rulemaking to force internet service providers to bid for school and library services through a new portal expressed concern that the proposal would needlessly complicate the process.

The FCC’s E-Rate program supplements schools and libraries securing affordable telecommunications and broadband services through the Universal Service Fund. Earlier this year, the FCC released a proposal that would “streamline program requirements for applicants and service providers, strengthen program integrity… and decrease the risk of fraud, waste, and abuse.”

The proposal suggests implementing a central document repository, called a bidding portal, through which internet service providers would submit bids to the program administrator, the Universal Service Administrative Company, instead of directly to applicants at a state and local level. Currently, libraries and schools announce they are seeking services and service providers apply directly to those institutions.

With the adoption of this proposal, applicants would be required to submit competitive bidding documentation that would enable applicants to compare competing bids and the USAC would establish timeframes on when applicants are able to review the bids that providers submit.

The proposal is in response to a September 2020 report by the Government Accountability Office which addressed what the GAO considers the E-Rate program’s key fraud risks. It reported that E-Rate participants could easily misrepresent self-certification statements by violating competitive-bidding rules or processes. These violations could occur without the Commission’s or USAC’s knowledge because they do not have direct access to the bidding information.

The GAO suggested that allowing the USAC direct access to obtain and monitor bidding information would improve security and strengthen program controls.

Proposal widely panned by CoSN and educational technology directors

However, response to the proposal was widely negative, with commenters raising concern that changing the process would needlessly complicate a system that, according to Verizon, is already promoting fair and open bidding on E-Rate contracts.

The Consortium for School Networking, the State Educational Technology Directors Association, and the National School Boards Association claimed that the Commission’s past reliance on state and local procurement requirements has been a success and has not led to an undue amount of fraud and abuse, negating the need to update the process.

Creating a national bidding portal could also interfere with existing state and local bidding requirements and unduly complicate the bidding process, hindering E-Rate participation, said the National Association of Telecommunications Officers and Advisors in its comment to the FCC.

“A bidding portal would interfere with existing state and local bidding and procurement processes, which would likely cause significant issues for applicants and may cause some to have to drop out of the E-Rate program,” read NATOA’s report.

The establishment of a national E-rate bidding portal would be “unnecessary, burdensome and will increase the complexity of, rather than simplify the E-rate program,” agreed South Dakota’s Department of Education in its statement.

National level or local level changes

Since the FCC’s announcement in December, the proposed changes have been subject to much debate. John Harrington, CEO of Funds for Learning, wrote in April that the E-Rate changes would be detrimental, claiming that procurement decisions are best made at the local level, rather than a “one-size-fits-all system.”

Furthermore, John Windhausen, executive director of the Schools, Health & Libraries Broadband Coalition, said in December that the proposal will burden applicants, despite the potential benefits of eliminating at least some forms of fraud. Windhausen claimed that there is not enough evidence to show that a new portal is needed.

However, the proposal has not been universally dismissed. In a comment filed last week, the United States Department of Justice, Antitrust Division, which is responsible for enforcing antitrust laws, expressed support for the proposal saying that it would “enhance the ability of the FCC’s Office of Inspector General to detect and deter fraud in the E-Rate program.”

The DOJ added that the update would allow for more robust enforcement of laws, including investigation and prosecution of antitrust and related crimes that occur during E-Rate procurements. “All responsive service providers and applicants are in a position to complete the additional step,” said the DOJ in response to critics citing undue burden.

The proposal remains in consideration at the FCC.

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