Chris Mitchell: After Friday the 13th, a Failed Broadband Mapping Challenge Process

Last Friday was a major milestone in the process of moving $42.5 billion from the federal government to states to distribute mostly to rural areas to build new, modern internet access networks. January 13th marked the deadline for error corrections (called challenges) to the official national map that will be used to determine how much each state will get.

As an organization that has worked in nearly all 50 states over the past 20 years on policies to improve internet access, we spent the last few weeks struggling to understand what was actually at stake and wondering if we were alone in being confused about the process. Despite the stakes, almost no expert we talked to actually understood which challenges – if any – would fix errors in the map data before it was used to allocate the largest single federal broadband investment in history.

This article will explore what is going wrong with the distribution of that $42.5 billion, the mapping process, and continued failure of the Federal Communications Commission to show competence in the broadband arena. And it offers ways to fix these important problems as every jurisdiction from Puerto Rico to Hawaii feels overwhelmed by the challenge.

The $42.5 billion guarantees each state $100 million and a large additional sum calculated proportionally based on the number of locations in each state that don’t have adequate high-speed internet service. States that already made significant investments in better rural networks and made strides toward fast universal internet access for all households – like Massachusetts – will likely not receive much more than $100 million, while extremely large states with many high-cost rural residents – like Texas and California – will receive billions.

NTIA is tasked with administering and distributing the funds and must use FCC data to determine estimates of awards to each state. ACA Connects and broadband analyst Mike Conlow have separately provided some preliminary estimates already. The FCC is building its official “Broadband Data Collection” (BDC) via a contract with CostQuest Associates. (There is a lot to be questioned about that contract but this is not the place.)

The FCC fails at broadband

The fundamental problem today is the continued failure of the FCC to produce an accurate map of where internet service is available and under what conditions (competitive options, price, reliability, speed, etc). The US National Broadband Plan – unveiled in 2010 – encouraged the FCC to develop better data on broadband deployment. Public interest groups have spent more than a decade asking the FCC to collect and distribute accurate internet access data. For years, everyone from local officials to US representatives and senators have ridiculed the commission for the long time Form 477 methodology that if a single home in a census block might be able to get access from a provider, everyone in the block definitely has access.

But nothing has been done, and the nation’s premier regulator of telecommunications continues to have no good sense of where good or bad internet access is, particularly in rural areas where the need is most acute.

Ajit Pai, former FCC chair under President Donald Trump, ignored Congress’ direction for new maps, claiming the agency was too broke to follow the law. And he moved forward with a multi-year plan to auction rural subsidies, called the Rural Digital Opportunity Fund. Some criticized the move given the lack of data, but I actually agreed with chair Pai because there were enough obvious unserved areas that could be prioritized while better maps were developed. But better maps were not developed and Pai’s management of RDOF turned into a bit of a shambles.

The repeated failure of the FCC to produce any reasonable broadband data collection across multiple presidential administrations, its disastrous management of billions of dollars in universal service funds to expand broadband, inability to modernize its broadband definition, and its mishandling of RDOF resulted in a surprising U-turn in Congress in 2021. Led primarily by Democrats, Congress had been preparing an unprecedented rural broadband subsidy package that would be largely distributed by an FCC-managed reverse auction. By the time that turned into the $42.5 billion BEAD legislation, Congress had so lost faith in the FCC that it sent the money directly to the states via NTIA.

Nonetheless, Congress directed the FCC to develop an accurate broadband data collection and required NTIA to base the $42.5 billion allocations using it. And that almost brings us back to January 13th.

The fabric and availability – in theory

Before the FCC can follow Congress’ instructions to develop an accurate broadband data collection, it has to catalog every location where high quality internet access should be available in order to determine whether it is available there. And that turns out to be more difficult than one might expect – especially if, like a procrastinating middle schooler, a federal agency waited until the last possible second to develop such a database.

The FCC turned to CostQuest Associates, a firm that it had long worked with to develop cost models for deployment. CostQuest developed a nationwide, proprietary fabric of “broadband serviceable locations.” Those include businesses, single family homes, apartment complexes, and more.

Given the enormity of that challenge – and how it literally changes every day – there were bound to be errors. Millions of them. Mostly in more rural areas and especially in Indian country where there are even fewer available records that CostQuest could mash together to identify accurate locations.

Once all the broadband serviceable locations are identified, the FCC began the next step of the process, and asked ISPs to identify which ones they offered service to. ISPs could upload a list of addresses or submit polygons that their fancy GIS software can probably output with a few clicks.

For fans of Top Gun Maverick, Miracle #1 is identifying all the locations where broadband should be available and Miracle #2 is accurately identifying what kind of service is available to it. I don’t want to spoil either the movie or real life, but Tom Cruise doesn’t save the day for the FCC.

Challenges with fabric challenges

Well aware of the FCC’s failed history of broadband mapping, Congress required the commission to install quality control mechanisms for data collection before NTIA had to calculate state BEAD allocations.

• “The Broadband DATA Act requires the Commission to adopt a user-friendly challenge process through which consumers, State, local, and Tribal governmental entities, and other entities or individuals may submit challenges to the accuracy of the coverage maps, broadband availability information submitted by providers, or information included in the Fabric.” (paragraph 70)

And so, the FCC set up processes for public challenges in which some entities – states, local governments, tribal governments, ISPs, and other organizations like ILSR that pursue the required licensing agreement with CostQuest – could file bulk challenges to the location and service-level data. Though it began in the summer, few were able to do much with the system prior to autumn. Then, beginning in November 2022 and ending last Friday, anyone could file individual challenges to both the fabric location data (is a home or business accurately depicted as broadband serviceable location?) and availability data (is the service actually available to it properly described?).

There is a lot going on – especially in states that are trying to staff up their offices with a candidate pool often lacking broadband in prior broadband expertise. If it were not for the NTIA need to allocate the $42.5 billion in BEAD funding, everyone would have had more time to understand the process and fix the errors. Or, if the FCC had started the process back when Congress passed the Broadband DATA Act in the spring of 2020, it would be further along now. Each month of delay is another month where the Biden Administration is not getting money out to states to build better networks.

Knowing that NTIA needed data to make its estimates, the FCC gave ISPs and states first crack at challenges while it prepared to release a map for public perusal. For the rest of us, the map became available on the Friday before Thanksgiving, and the FCC announced the January 13th deadline for challenges to fix errors. Public interest groups, states, local governments, and many more went to work – many giving up personal time around the holidays – in the hopes of ensuring their states had accurate data to maximize their share of the $42.5 billion.

Unfortunately, many of us have come to believe the individual, public challenge process window – and the way it has been consistently described by both the FCC and NTIA – was largely a sham that would not fix most of the errors in the data. We hope to be proven wrong as the FCC evaluates the challenges, but it is hard to come to any other conclusion after learning only a few days from Friday’s deadline that the real cutoff for location challenges to change BEAD allocations was actually October 30, 2022. That was before the public could even see any of the data.

Kudos to Meghan Grabill from Maine Connectivity Authority, for bringing this to the attention of many, including us. Even if it made us repeatedly question our sanity as we tried to verify it.

In emphasizing the January 13 deadline, NTIA and FCC repeatedly used the challenge terminology ambiguously (locations and availability), not clearly explaining that only the availability challenges made during the November to January window would be used in determining how to divide the $42.5 billion. Location challenges after Oct 30 are helping to fix the map over time but not for allocating bead funding. That might have been useful information for all the people and organizations that put so much time into fixing errors in the data collection.

To be perfectly clear: the new FCC maps will replace the previous ones, and continue to be used for years to come. We’ll likely see new versions published twice per year, as has been the case in the past. Challenges made post-January 13 will help improve the map’s accuracy down the road if the FCC takes them seriously, but by then the state BEAD allocations – a once-in-a-generation investment in our national telecommunications infrastructure – will have passed.

Imagine our shock (and others), when we learned that the deadline for location challenges to be included in the BEAD allocations was October 30, 2022, not January 13, 2023. We can say confidently that in our conversations, few state broadband offices understood this distinction. In fact, we believe nearly everyone involved in the challenges thought the location challenges they filed would help their states rectify inaccuracies and improve their share of the $42.5 billion.

Even conservative hypotheticals show that there are serious consequences at stake here. If every state averaged just 20,000 missing locations from the fabric, the number of broadband serviceable locations missing across the country would total one million premises – representing millions of people. The twist of the knife here is that these locations are the most likely to already lack decent internet access (likely for years), because if they were served by an ISP, that company likely would have fixed the omission prior to October 30.

If every state missed 20,000, the proportional distribution wouldn’t change. But these omissions aren’t random, and 20,000 is a low estimate for missed locations (based on our preliminary survey of state-filed bulk challenges). The data is decent in urban areas but some rural areas have significant problems, as noted by industry analyst and consultant Doug Dawson.

• The State of Vermont reacted quickly to the new FCC maps and showed the extent of the problems. The State sent a challenge letter to the FCC saying that 11% of the locations in the FCC mapping fabric don’t exist. Worse, Vermont says that 22% of locations are missing from the FCC map. Vermont also said the speeds portrayed in the new maps don’t align with its own local mapping effort. The new FCC map shows that over 95% of Vermont homes have access to broadband of at least 100/20 Mbps. The State’s broadband maps show that only 71% of homes in the state can receive broadband at 100 Mbps or faster at the end of 2021.

The problem is magnified because only some states were aware of the Oct 30, 2022 deadline and got their location challenges in. That disparate outcome is a savage irony for Nevada, which appears likely to be punished more than others (pdf) under the arrangement. Irony because one of their Senators – Senator Cortez Masto – was almost certainly one of the very few Democrats that held up the confirmation of Gigi Sohn to the FCC. With Biden’s term already half completed, the Senate has kept the FCC at a 2-2 deadlock by failing to confirm his 3rd vote at the Commission. And as this story details, the FCC is not getting the job done.

To recap – the FCC is required to allow challenges to its data because of its history of inaccurate broadband claims. The FCC created a proprietary fabric with a hasty contract with CostQuest Associates, trying to tackle an extremely difficult problem on a short timeline. States had an early shot to fix errors in the fabric, but at a time when many state offices were still seeking people to work in their broadband offices. The data only became publicly available after the deadline passed to fix what could be millions of omitted or incorrect locations, at which point the FCC and NTIA encouraged people to submit challenges (during the December holidays) to fix both the fabric and the overstated claims of availability.

In our internal sanity check, we found just one clear communication from NTIA about the October 30 fabric challenge deadline. Nearly all appear to have been ambiguous about what challenges would change BEAD allocations. FCC communications likewise treated challenges interchangeably, leading few to realize that location challenges after October 30 would not change BEAD allocations, which is the primary reason so many were motivated to fix CostQuest’s errors.

Why? As best we can tell, the FCC is concerned that if it adjusted the fabric after October 30 based on the public challenges, it would have to give the ISPs more time to claim service available to those new locations. However, the ISPs already had a chance to fix those errors. Thus, the FCC had to choose between leaving potentially more than a million locations off the map erroneously or including them and running the risk that some small subset of them might be classified inaccurately as unserved. The Commission made its usual choice – backing ISPs rather than residents and small businesses that need better internet access.

Meet the new maps, same as the old maps

One of the reasons many of us actually focused on fabric location challenges is because they seemed more likely to succeed than availability challenges, which are harder to prove. People and governments find it easier to identify home and business addresses that exist than they do to argue about whether an ISP has accurately described the services available at that location.

Many of us hoped that the FCC would incorporate some form of crowdsourced data in its mapping process, but it has not. The FCC declined, in part because individual speed test results may not accurately reflect a connection because the test might have been done over congested Wi-Fi or that service might be a lower tier from the max offered, or other reasons. However, many working in this space have convincingly argued that many speed tests in aggregate should be used to highlight regions with consistent significant discrepancies between test results and the claimed advertised speeds from ISPs. We fear that the availability challenges may become a “he said, she said” affair.

Availability challenges can be done by property owners or in bulk by states, local governments, tribes, and others licensed to do so. However, it is not clear how the FCC will actually adjudicate between a provider and a homeowner. For instance, a fixed wireless provider told the FCC it offered my home symmetrical gigabit. But their website told me I could pay hundreds of dollars for 2 or 3 Mbps. I asked for the service and when I got no response, I filed a challenge. We’ll see how it goes. Even if I succeed, the map will likely still reflect that ISP telling the FCC that it would offer a symmetrical gigabit to my neighbors. The FCC refuses to penalize firms for repeatedly filing false information, arguing it could actually be an honest mistake. This feels like reports of when that mob guy fell down the stairs onto a knife seven times. It’s an embarrassment to a process with so much at stake, and an insult to our collective intelligence.

People are able to challenge the data, but few experts that we have talked to expect those challenges to go very far. And as we have worked with local groups to help them challenge their local data, we have heard the process is too difficult and people have many concerns about privacy.

In a discussion about the current mapping process, executive director of the Precision Ag Connectivity Act Stakeholder Alliance Garland McCoy argued that the new maps are going to be the same as the old maps (around 45 min in). The maps continue to rely primarily on claims by ISPs regarding what they advertise to locations without any pricing information.

We only have anecdotal evidence about the acceptance rate of both location and availability challenges thus far, but they are not as high as we would expect. Doug Dawson noted an area where they put in almost 200 location challenges but the FCC only accepted 7 of them. One of the locations that was rejected was the home of a person who was on the local broadband council. We will not be surprised if the acceptance rate of the availability challenges is in single digits, and are concerned that the FCC’s fabric location challenges could be below 50 percent, leaving at least hundreds of thousands of households off of our national broadband map.

There is little about this process that should give anyone any faith that the FCC is finally building an accurate broadband data set that should be used to distribute millions, let alone tens of billions of dollars.

What should be done

To ensure the $42.5 billion finally resolves the digital divide, both the FCC and NTIA need to change course. NTIA needs to use some flexibility in the BEAD program to push some initial money out to states while waiting on final estimates from FCC maps that better reflect reality. Both agencies should seriously explore how and why the confusion and misinformation conflating availability challenges with location challenges happened. To resolve the problems identified above, we recommend the following:

• NTIA should not make final BEAD allocations using data from the current FCC data collection where only some states were able to offer fixes for their many missing locations.
• The Senate should confirm Sohn and break the FCC deadlock.
• The FCC must develop a data source about internet access availability that reflects the actual service available to homes and businesses.
• The FCC needs greater independence from the biggest cable and telecom companies.
• States need to develop their own mapping capacity rather than relying solely on the FCC and to ensure they spend internet access subsidies wisely.

NTIA is required by a somewhat prescriptive statute to use FCC data to allocate the $42.5 billion among states and territories. The FCC’s data is not ready and has not been properly reviewed by the states, local governments, and other key entities. NTIA is required to distribute $100 million to each state at a minimum and it should start moving a significant amount of that money while delaying making the final allocation until FCC has adequate data. This path is a modest improvisation on the statute, much more in keeping with its spirit than the ways NTIA has blown through deadlines in statute for various programs, including the Tribal Broadband Connectivity Program, without much consequence.

On matters of broadband internet access – from tracking its deployment to subsidizing better networks, the FCC has failed, and exhibits the key characteristics of a captured agency. During the entire Biden Administration, the Commission has been deadlocked with a 2-2 vote as the President delayed his nomination for most of his first year and then Sohn faced an unprecedented effort of powerful monopoly lobbyists to prevent her confirmation, despite many of those lobbyists themselves quietly admitting to those around them that she was eminently qualified. The lobbyists hoped to run out the clock in 2022 but President Biden surprised them by re-nominating her and expectations are in line with a confirmation in the 1st quarter of this year.

Sohn brings a seriousness, experience, and willingness to do the hard work that the Commission desperately needs more of. The Senate needs to confirm her and investigate whether the FCC is actually adhering to the requirements that its broadband data be open to corrections. An early sign will be the rate of the FCC accepting challenges given what appears to many experts of a current broadband data collection riddled with inaccurate claims.

Further, Congress should require the FCC collect pricing data and penalize those ISPs that consistently submit false data regarding their availability and the capacity that will actually be available to subscribers. Though the Biden Administration claims BEAD will somehow result in “Internet for All,” we believe the country will continue to have significant challenges with urban internet access in high-poverty neighborhoods, on many remote Tribal Reservations, and in some rural pockets of states that spend the money less wisely. Having accurate data will help to address those challenges after BEAD investments are made.

Given the small size of the telecom/broadband field, having some kind of revolving door between the FCC and industry is inevitable. However, that door should be made to better reflect the diversity of the telecommunications sector rather than being so skewed in the favor of the biggest monopolies. This is particularly true for the highest-level staff and appointees, who are far more likely to have worked only with the biggest cable or telephone companies prior to joining the Commission or after they have left it. A healthy FCC would see a greater representation of small companies, cooperatives, and municipal providers walking through the doors.

Finally, as Tamarah Holmes told me as we discussed her Office of Broadband at the Virginia Department of Housing and Community Development, states need to develop their own GIS capacity in order to effectively distribute broadband subsidies as well as more generally move to universal access. Fixing the FCC will take more time than the states can afford to give. The states have their own power to compel ISPs to submit accurate data on deployment and ban them from receiving subsidies if they consistently file false claims.

States need to become more savvy on matters of internet access, ensuring the local providers in their states have a fair shot at funds to expand to unserved and underserved areas because they have tended to outperform national ISPs at building great networks in more rural areas despite having less access to capital and subsidies historically.

The confusion and wasted effort around the January 13th deadline will have been a small price to pay if it jolts the FCC and NTIA out of their current paths.

Editor’s Note: This piece was authored by Christopher Mitchell, director of the Institute for Local Self Reliance’s Community Broadband Network Initiative. His work focuses on helping communities ensure that the telecommunications networks upon which they depend are accountable to the community. He was honored as one of the 2012 Top 25 in Public Sector Technology by Government Technology, which honors the top “Doers, Drivers, and Dreamers” in the nation each year. This piece was originally published on MuniNetworks.org on January 17, 2023, and is reprinted with permission.

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