Dear RUS: How to Prove a Negative (Part 2)

In addition to the criteria described in Part 1, I propose one more criterion concerning the validity of the National Broadband Maps: evidence of consumer decisions. If, by surveys or outreach, it becomes evident that fewer than 10% of the households subscribe to an ISP’s service, the RUS should count the area as unserved by that ISP. Congress has proscribed funding to areas where broadband is available to more than 10% of the households. It would be perfectly reasonable for the RUS to include consumer decisions as one of the demonstrations that an area is served or unserved. Simply put, if an ISP’s service is so poor and unavailing that less than 10% of households subscribe to such a service, then the consumer decisions should be prima facie evidence that broadband is unavailable.  Consider any other essential service to which less than 10% of the households subscribe. Can you think of even one? Can you imagine less than 10% of the households in an area subscribing to electric service? If households do not subscribe to a service, it is a sufficient demonstration that the National Broadband Maps are wrong, and that service is not available. Let’s not rely on the 477 data in that circumstance. Instead, let’s take t of the local residents.

A Proposal to Overcome the National Broadband Maps’ Presumption of Service

I will assume for purposes of this proposal that RUS adopts Congress’s initial speed threshold of 10/1 Mbps and the FCC’s criteria that internet access service at 10/1 Mbps include monthly capacity of at least 160 GB, latency of less than 100 milliseconds, and price as a standalone service for $55 per month or less.

As a reminder, the 477 data only purports to show that an ISP advertises availability to at least one location in a census block. There are two questions that matter: (1) whether the block is fully served or only partially served, and (2) whether the speeds are actual speeds, or only advertised speeds.

With respect to the first question, if it can be shown that even a single location lacks actual service from such an ISP, then the census block is, at most, only partially served. Further, if even a single location lacks service, it is statistically more likely in a rural area that only half the locations in the census block are served than all the locations. Second, if it can be shown that actual subscriber speeds consistently fall below 10/1 Mbps, then such an area should be considered unserved for purposes of the RUS broadband pilot program.

In order to test the validity of the 477 data underlying the National Broadband Map, I propose that applicants to the RUS broadband pilot program take the following steps.

1. Identify the census blocks in the area and download the FCC’s 477 data for those census blocks. The census blocks in which no ISP claims 10/1 Mbps service count as unserved.

1. For those census blocks where an ISP claims 10/1 Mbps service, identify the provider(s) and check whether their service offering meets all four criteria for broadband. If no ISP meets all criteria, count the census block(s) as unserved.

1. For those census blocks where an ISP claims 10/1 Mbps and the service offering meets the broadband criteria, employ the applicable FCC’s testing protocols adopted July 6, 2018, specifically with the respect to the time of testing, frequency, and number of tests to be performed. The tests should be performed at peak times at the locations of subscribers to the particular ISPs claiming 10/1 Mbps service.

The FCC requirement for the number of test locations depends on the number of ISP subscriber locations, as follows:

1. Using the chart above, determine the number of test locations based on the number of the ISP’s subscribers in the area that will be tested. It may be difficult to get data on the number of an ISP’s subscribers. Though the FCC collects such data, it does not make the data public, except in the aggregate by technology. One could make a good faith assumption that the number of subscribers within the test area is proportionate to the aggregate data (see, for example, https://www.fcc.gov/internet-access-services-reports). Since this number is only being used to establish the number of test locations, such an estimate would be appropriate. If the FCC were to make the individual data publicly available or the ISP makes such data available, ISP-specific data could be used.

1. Identify test locations, which must be subscribers to the ISP at the requisite service level. This step will assuredly be the most difficult because, despite the 477 data, there may few if any such subscribers. If a good faith effort to locate subscribers fails to turn up enough to conduct the requisite tests, the area should be considered unserved.

1. Conduct tests from a sufficient number of test locations to determine the percent of tests that pass/fail to meet the 10/1 Mbps standard. If 90% or more locations fail, the area should be considered unserved.

1. If less than 90% of the locations fail, use the percentage of failures to calculate the number of unserved households and adjust the area where the applicant is seeking funding. For example, locate the DSLAMs in an area and determine whether successful tests are at households closer to a DSLAM than failed tests. If so, adjust the proposed application to account for the distance sensitivity of the ISP’s technology.

1. Prepare an application that can show through a variety of tests and measures that 90% of the households in the area lack broadband.

1. If an ISP contests an application as including an area that is already served, the RUS should require testing that is specific to the area and at least as rigorous as the FCC testing protocol. Having overcome the presumption of service in the National Broadband Maps, contrary evidence gathered by an applicant should shift the presumption. Furthermore, the ISP’s tests should made available to the applicant and to the community. To the extent that an ISP can demonstrate the requisite service to specific areas in the application, those areas would be removed.

My perspective on the National Broadband Maps comes from time spent working with the data inside the FCC and outside the FCC, from the time when the FCC used the State Broadband Initiative (SBI) data and switched to the 477 data. The SBI data was inconsistent and the 477 data is unreliable. That said, it is worse for policymakers to use data they know to be unreliable without allowing for challenges to the data. The steps I have outlined above recognize the shortcomings in the data in order to permit a targeted approach for the RUS broadband pilot. The RUS is seeking comment by September 10. Let’s have an open dialogue that gives rural carriers guidance to prepare their applications and the RUS evidence to go about its important work in connecting Rural America.