Broadband Data Bill Faces Implementation Hurdles
Broadband Data Bill Faces Implementation Hurdles
Broadband Data Bill Faces Implementation Hurdles

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    Sometime next year, the new Administration will start to figure out a plan for collecting information about where broadband is, and how to increase deployment. The delay will be necessary because while Congress passed the bill to improve broadband data collection, S. 1492, there isn’t any money actually set aside to pay for the program. Until appropriations bills are passed for the next fiscal year, FY 2010, which starts Oct. 1, 2009, there won’t be any money. As a result, it could be calendar year 2010 before any program gets going.

    The bill is a worthwhile first step, because it puts Congress on record as wanting more information about broadband. For taking that step alone, the bill’s sponsor, Senate Commerce Committee Chairman Inouye (D-HI), should be commended, along with House Telecom Subcommittee Chairman Markey (D-MA), who sponsored a similar bill in the House but supported Inouye’s measure to prevent a legislative deadlock and make certain legislation passed this year.

    The legislation is by no means a broadband policy any more than a thermometer is a cure for an illness. Having some measurement of a problem is good. However, there are some parts to the bill that raise questions about how effective the data mapping and broadband cheerleading in the bill will be.

    However, the advantage of having such a delay in implementation is that there will be lots of work to be done in order to make this program useful.

    One of the big obstacles in the bill is that, being backed by the Communications Workers of America and others who work with state-based groups like the Connected Nation franchise, the bill relies to a great degree on state-based organizations to collect information, which could lead to problems later on.

    The legendary U.S. Supreme Court Justice Louis Brandeis said in 1932 that, “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” However, in carrying the analogy of the states as laboratories a little further, if one laboratory boils water at 212 degrees Fahrenheit, and another laboratory boils water at 500 degrees, then there will be severe problems comparing the results of experiments.

    By having a state-based approach, rather than a uniform Federal approach, the data collection effort runs the risk of having a variety of information and narratives that can’t be used to put together a complete picture to track the availability and adoption of broadband. Unless one state can be compared with another, it will be impossible to assemble a uniform picture. That means the Commerce Department, which will be responsible for the grants, may have to impose some uniformity through the grant-making process.

    In collecting state-based data, the broadband inventory will become different from any other essential economic statistic. Everything else is collected by the Federal government. If this experiment doesn’t produce useful data in a couple of years, Congress should go back and start over.

    On top of the fact that there will be 50 different approaches, unless the federal government imposes some uniformity, another severe challenge to the success of the program will be the quality of the information collected under the plan. Although the FCC collects its own information, the legislation requires states to “identify and track” several key indicators, including areas that are low in broadband deployment as well as adoption rate. Start with the 50-state approach, which may or may not allow for comparisons.

    A more basic issue is what type of information will be collected. The legislation is chock full of exemptions and protections for an industry that doesn’t like to submit any useful information, or to have that information made public. Only “aggregate data” can be used, and any data that is “privileged or confidential” can be kept secret. Exactly how useful will that information be? We’ll have to wait and see, but anyone who wants to try to find a certain street or address to check if broadband is available and if so, at what speeds and price, won’t have much luck.

    At the end of August, Fla. Attorney Gen. Bill McCollum hit Comcast with a $150,000 fine for cutting off customers who supposedly used too much data. It turned out that Comcast simply cut off the top 1,000 customers who used the most data. A relevant question would be – exactly how much data did those people use? If that number is substantially above the 250 gb/month cap Comcast slapped on users, then policymakers could know a little more about Comcast’s network and policies. Comcast went to court asking for that data to be protected as confidential information and a trade secret.

    Comcast told the court it wanted to protect internal memos on acceptable use policies, “confidential reports compiling sensitive excessive-use data on Comcast’s Internet subscribers,” proprietary marketing agreements and communications plans for addressing “excessive use.” Comcast said that if McCollum’s office is “permitted to provide third parties with these documents, Comcast will lose its unique business advantage and will suffer an irreparable harm to its business.” In a one-page order issued Oct. 1, Miami-Dade Circuit Court Judge Thomas Wilson granted the protective order.

    Comcast has opposed release of information before. Earlier this year in the Maryland legislature, Del. Herman Taylor (D-14th district) introduced a bill requiring carriers to report where they offered broadband service. Comcast opposed the legislation based on national security considerations. While defending the need for protecting proprietary information, Comcast lobbyist Sean Looney testified that “9/11 wasn’t that long ago. We don’t want to make it easier for them to take out the network.” He added that the legislation requiring fuller disclosure could point to where vital public safety resources were, particularly in the wireless network.

    Verizon and its wireless affiliate also opposed the bill, saying the burdens of reporting were so great that investment in the company’s network would be stifled.

    So by all means, proceed with the state-based booster groups the bill would set up, and with the attempts at data collection. At this point, however, the likely outcomes are very uncertain.