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Garland McCoy: Some State Attorneys General Are Preparing to Take the FCC to Court

While some will “cash out,” other state broadband officials will seek the full measure of federal broadband infrastructure funds due.

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The author of this Expert Opinion is Garland McCoy, Executive Director of Precision Ag Connectivity and Accuracy Stakeholder Alliance

Let me start by saving the time of those state broadband officials who are going to accept the recently released FCC Broadband Map Data at face value and take NTIA’s “cash out,” and in doing so, forgo participation in the available FCC challenge process. For those state broadband officials, the insights, and recommendations I provide below will be of little interest to you. 

If the past is any prelude to the future, the Internet Service Providers will use the same challenge criteria to successfully throw out the crowdsourced and bulk data that states have gathered for their own maps. As I detailed in my recent article on Broadband Breakfast, the FCC published specifications for its challenge process on September 15, 2022.

This directive gives ISPs authority to challenge data drawn from their respective service territories, leaving states with little choice but to accept the FCC’s map. The only notable exception is California, which has put in place its own statewide device-driven data gathering methodology, and we consider its data as likely challenge-proof. 

Not all is lost for states seeking to challenge the FCC’s maps

But all is not lost for other states. By the end of the first quarter of next year I firmly believe there will be some state broadband officials who will seek to pursue the full measure of federal broadband infrastructure funds due them, and not simply acquiesce to a smaller portion of funds that is supported by the flawed FCC map.

I base this assumption on new methodologies now available to states, which will bring the same type of credible validation and metering to broadband service at the end-user level that has been available, and required, for decades with other important utilities such as electricity, water, and natural gas. In other words, these methodologies will allow consumers to determine if they are getting true broadband speed connectivity – and frankly whether or not they are getting what they are paying for.

These state broadband officials have reviewed the recently released FCC broadband map and have compared it to their own respective state broadband maps. And not surprisingly, what they are finding is an FCC map that vastly overstates the amount of broadband connectivity in their states, and in doing so, vastly reduces the amount of federal dollars that state will receive. And these differences are significant. It could mean as much as a loss of tens of millions of dollars in smaller states and up to half a billion dollars or more for larger states. 

What these state officials will ultimately find is irrefutable evidence that many of the ISPs doing business in their state have been systematically providing significantly less service speed and quality than their customers’ terms of service agreements stipulate.

States are beginning to work with their state attorneys general on lawsuits

Knowing this and considering how the FCC has not run a transparent and straightforward process – and has used the calendar in a way to run out the clock on states, you can see why some state broadband officials have begun working with their state attorneys general to not only prepare to challenge the FCC data, but to take their case to court. 

Consider the calendar issue alone: The FCC released its long-anticipated new map data on November 18, 2022, and is giving states until January 13, 2023, to respond – with the major holidays of Thanksgiving, Christmas, and New Year’s falling in the interim.

If you are one of these state broadband officials currently considering your options to challenge and/or litigate, then we can play a vital role in your efforts. You will need to ensure that your state broadband map data is litigation-ready by putting in place bullet-proof methodologies and highly credible network monitoring devices/meters. This data can be used to support your case for the full broadband infrastructure funding that your State is entitled to receive.  Additionally, these same devices and methodologies can be used to support any state lawsuits against ISPs for false/deceptive advertising and breach of the spirit, if not the letter, of customer “terms of service” contracts. 

Importantly, our device-driven methodology also focuses solely on the premium customers of ISPs in rural counties of a state, which establishes what FCC refers to as the “available service” for a given ISP’s service territory. 

You have the power to truly close your state’s broadband connectivity gap by fully utilizing the historic level of federal infrastructure funding that has been set aside for this purpose, which in turn will bring accountability and equity to broadband network services for your citizens. 

If you want a citizen-centric partner in these initiatives, please visit our website and contact me at the email address provided below. PAgCASA is a non-profit organization focused on promoting rural prosperity, and we are utilizing industry standard network monitoring/metering devices, same as used by the largest ISPs, litigation-ready methodologies, and an expert team and partnerships to accomplish our goals.

Garland T. McCoy, Co-Founder and Executive Director of Precision Ag Connectivity and Accuracy Stakeholder Alliance, is a long-time non-profit veteran in the fields of technology and telecommunication policy having served as Founder and CEO of the Technology Education Institute. Garland was recently an adjunct professor at Syracuse University’s iSchool, teaching information policy and decision making, and can be reached at garland.mccoy@pagcasa.org. This piece is exclusive to Broadband Breakfast.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

Broadband Breakfast is a decade-old news organization based in Washington that is building a community of interest around broadband policy and internet technology, with a particular focus on better broadband infrastructure, the politics of privacy and the regulation of social media. Learn more about Broadband Breakfast.

Broadband Mapping

Efficacy and Timeline of FCC’s Challenge Process Questioned by State Officials, Industry Experts

The challenge process is important because mapping is a “zero-sum game,” panelists said.

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WASHINGTON, January 13, 2023 — As the next deadline for challenging the Federal Communication Commission’s national broadband map arrives on Friday, state broadband officials and industry experts still have questions and concerns about the overall process, according to panelists at a Broadband Breakfast Live Online event on Wednesday.

Much of the urgency surrounding the challenge process stems from the fact that the map will be used to determine the allocation of $42.5 billion in funding from the Broadband Equity, Access and Deployment program. Limited resources and contractual restrictions have barred several states from being able to challenge data that they argue contains significant mistakes and omissions.

The allocation of BEAD funding is “definitely a zero-sum game,” said J. Randolph Luening, founder of BroadbandToolkit.com.

“If everyone presents new locations and new underserved and unserved areas in the same proportions, then nothing changes,” Luening said. “But… if you’re a state broadband office, you do want to be diligent to try to discover those areas within your bounds because they’ll result in, on the margin, a significant number of dollars if you do a good job.”

Although challenges will be accepted on a rolling basis, the NTIA has announced that challenges should be submitted before Friday, January 13, in order to be reflected in the map used for BEAD funding. allocation

However, there is some confusion over exactly which types of challenges are included in this deadline. The fixed-broadband portion of the FCC’s map includes the “fabric,” which is a dataset of locations at which broadband is or could be installed, as well as provider-reported availability data.

Difference between fabric (or location) challenges and availability challenges

Availability, or coverage, challenges submitted by Jan. 13 will be factored into the BEAD allocation map. But according to Meghan Grabill, geospatial data analyst for the Maine Connectivity Authority, the cutoff for fabric (or location) challenges to be included in the BEAD allocation map was Oct. 30.

In an email after the Broadband Breakfast event, Grabill attributed this information to statements made by multiple officials during “office hours” held by the FCC and the National Telecommunications and Information Administration, as well as in private meetings.

Meghan Grabill

The few states who were able to submit location challenges before that date are now far ahead in the “zero-sum game” of obtaining funding, Grabill said.

An October location challenge deadline was not formally communicated by the NTIA or the FCC. Several state broadband offices have continued to prepare location challenges under the assumption that anything submitted by Jan. 13 will be used for BEAD allocation.

On Jan. 5, the two senators from Nevada — Jacky Rosen and Catherine Cortez Masto — wrote in a letter to the FCC that the map was “deeply flawed,” pointing to “missing serviceable locations” and noting that the discrepancies could cost Nevada millions of dollars in federal funding. In order to combat these shortcomings, the senators asked for a 60-day extension of the challenge period.

This extension request was echoed by an open letter signed by local governments and organizations in 19 states and Washington D.C.

Several other states have issued statements highlighting the January cutoff, such as a Jan. 4 press release from the Pennsylvania Broadband Development Authority asking residents to “submit their challenge by the Jan. 13 deadline so the commonwealth receives enough federal funding to expand broadband access.”

The communications from Pennsylvania, Nevada and several other states include explicit reference to location challenges — indicating a belief that both availability and location challenges submitted by Jan. 13 will be included in the BEAD allocation map.

Grabill said she had mixed feelings about a potential extension, noting that while it would be a good opportunity for the office to engage with citizens, it wouldn’t have a major impact on BEAD allocation because “location challenges were kind of where the battle was won.”

Questions remain about the overall efficacy and purpose of the challenge process

Some experts have argued that the challenge process doesn’t matter because the map is consistently inaccurate across every state.

Garland McCoy, executive director of the Precision Ag Connectivity Act Stakeholder Alliance, expressed doubt about the impact of the challenge process on BEAD allocation, saying that whether the deadline passed months ago or whether it will be extended another 60 days is unlikely to “make any difference whatsoever.”

Grabill disagreed with that premise. “People have tried to investigate whether we’re all skewed equally, and I think the answer is no — there’s some winners and there’s some losers in the ‘skewed-ness’ of the fabric and who got noted as served and unserved,” she said.

Even if participation in the challenge process will not yield a higher share of federal funds, states still have reason to actively pursue an accurate map, McCoy said. Local entities should be preparing for the “internal battle that’s going to be taking place within the state maps” when it comes to the division of funding between urban and rural areas.

Unless rural counties actively push for their unserved and underserved populations to be included in the mapping and planning processes, they will not receive the appropriate allocation of funding, particularly because internet service providers lack financial incentive to serve remote locations, McCoy said.

Because the FCC is not requiring providers to formally respond to crowdsourced data, state officials and other actors may feel less motivation to aggressively pursue those challenges, Luening said. However, that data can still prove valuable in certain situations.

“If you’ve got a large area where you have many ISPs who are claiming to provide service, and you have no crowdsourced data points showing that level of service, then it will seem that that’s a pretty good argument that it may not be there… Even though it’s been categorized as a second-class citizen in terms of the FCC response, [crowdsourced data is] still a very powerful tool,” Luening said.

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

Wednesday, January 11, 2023, 12 Noon ET – How to Challenge the FCC’s Broadband Map

In November 2022, the Federal Communications Commission published the first draft of its new national broadband map, which displays data for fixed and mobile broadband. In addition to provider-reported availability data, the fixed-broadband portion of the map includes the “fabric,” a dataset of locations at which fixed broadband “is or could be installed” that was constructed by CostQuest Associates — not without some controversy. The map is important because its data will likely factor heavily into the distribution of broadband grant funding, but many state broadband officials have said the processes through which the map’s accuracy can be challenged are difficult and complicated. In this Live Online event, a panel of experts will review the controversies surrounding the FCC’s map and discuss the various challenge processes.

This FREE Broadband Breakfast Live Online event will feature insights from the exclusive Broadband Breakfast Club report for the month of January. Access the full report by registering here.

Panelists

  • Meghan Grabill, Geospatial Data Analyst, Maine Connectivity Authority
  • J. Randolph Luening, Founder, BroadbandToolkit.com
  • Garland McCoy, Executive Director, Precision Ag Connectivity Act Stakeholder Alliance
  • Drew Clark (moderator), Editor and Publisher, Broadband Breakfast

Panelist resources

Meghan Grabill is the Geospatial Data Analyst for Maine Connectivity Authority, where she is responsible for data management and analysis to ensure everyone in the state of Maine has access to affordable, accessible, high-quality broadband.   With a background in geography and planning, she brings a unique blend of skills and experience to the position with training in spatial analysis and community development.  Previously Meghan worked for the Island Institute as a community development officer.

J. Randolph Luening is founder of BroadbandToolkit.com (video), a “commercial mapper” that provides analytical planning tools to the telecommunication industry to help state broadband offices, investors, grant applicants, engineering firms and ISPs in BEAD / CPF and others in infrastructure and funding-related decisions. He has enjoyed a 35-year carrier in the fixed, mobile, and satellite telecommunications, doing business in the U.S., Europe and Asia. His education includes a Bachelors of Science in Electrical Engineering (Duke University), Masters of Engineering in Electrical Engineering (Cornell University) and an MBA in Marketing (Wharton School of Business).

Garland T. McCoy, co-founder and executive director of the Precision Ag Connectivity and Accuracy Stakeholder Alliance, is a long-time nonprofit veteran in the fields of technology and telecommunication policy, having served as Founder and CEO of the Technology Education Institute. Garland was recently an adjunct professor at Syracuse University’s iSchool, teaching information policy and decision making, and can be reached at garland.mccoy@pagcasa.org.

Drew Clark (moderator) is CEO of Breakfast Media LLC. He has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative.

Photo illustration by Em McPhie/Breakfast Media/Adobe Stock

WATCH HERE, or on YouTubeTwitter and Facebook.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTubeTwitter and Facebook

See a complete list of upcoming and past Broadband Breakfast Live Online events.

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Broadband Mapping

FCC Broadband Challenge Data May Be Evaluated Post-Deadline by the Commerce Department

States facing difficulties collecting coverage data may have more time to present challenges.

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Photo of Jake Varn, principal associate Pew Charitable Trusts

WASHINGTON, January 10, 2023 – Challenge data for the Federal Communications Commission’s broadband availability map submitted after the January 13, 2023, deadline may still be evaluated by the National Telecommunications and Information Administration, said experts in a Tuesday webinar hosted by National Broadband Resource Hub.

Those challenges submitted before Friday’s looming deadline will be considered in the version of the map that will guide the Commerce Department’s NTIA in divvying funds from the $42.5 billion Broadband Equity, Access and Deployment program in June.

Join the Broadband Breakfast Live Online event, How to Challenge the FCC’s Broadband Map, on Wednesday, January 11, 2023, at 12 Noon ET.

State and local officials are clamoring to meet the January 13 deadline, but experts indicate that local maps need not be entirely up to date by Friday. Instead, officials should be primarily concerned with the portion of available funds allocated to the state, said Alex Kelley, head of broadband consulting at Center on Rural Innovation. Local-level officials should work to update maps prior to the allocation of funds from the state, he continued.

Next Century Cities representative Ryan Johnston added that it is never too late to collect data to be included in the next iteration of the map. He added that there is a possibility that the Commerce Department’s NTIA will consider data added post-deadline in fund allocations.

Crowdsourcing broadband data

States official attending the event expressed concern in collecting viable challenge data within a short timeframe. The primary data collection method for states previous to the FCC’s challenge process was speed tests, which are not being accepted by the agency, said Jake Varn, principal associate at Pew Charitable Trusts.

Instead, states must turn to bulk crowdsourcing by encouraging residents to submit challenges to the state. Evidence of unsupported claims may include a service provider denying service installation, failing to schedule a repair or installation within 10 days of a request, not appearing for a scheduled service, denying service claims, requesting more than the standard installation fee to connect the location, requiring new and non-standard equipment, or having no wireless or satellite signal available.

Ohio engineered a crowdsourcing program to reach those known unserved locations through mail with information on how to file a challenge via phone number or email, said Varn. Mississippi followed suit by establishing a hot line for unconnected residents to submit their filings.

Kelley suggested that states looking to improve crowdsourcing efforts involve more people and “tap into the grassroot energies already existing” in the community. Connect crowdsourcing to broadband initiatives that already exist, he suggested, make a culture and movement around broadband access rather than a one-time initiative.

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Broadband Mapping

What You Need to Know About the FCC’s Maps and the Challenge Process

The Broadband Breakfast Report for January 2023 lays out the things to know about the challenge process.

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Photo illustration by Em McPhie/Breakfast Media/Adobe Stock

The allocation of billions of dollars of broadband infrastructure money is contingent on the big update to the broadband map of the Federal Communications Commission, which has set Jan. 13, 2023, as the deadline for challenges to a preliminary version released on Nov. 18, 2022.

That deadline is intended to set a timeline for the version of the map — after challenges — that will guide the National Telecommunications and Information Administration, a U.S. Commerce Department agency, in divvying out to the states by this June 30 the $42.5 billion from the Broadband Equity, Access and Deployment Program, which emerged from the Infrastructure, Investment and Jobs Act of November 2021.

Join the Broadband Breakfast Live Online event, How to Challenge the FCC’s Broadband Map, on Wednesday, January 11, 2023, at 12 Noon ET.

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