[1st-mile-nm] Broadband Data Bill Faces Implementation Hurdles

[Richard Lowenberg]

Broadband Data Bill Faces Implementation Hurdles

www.publicknowledge.org/node/1780

By Art Brodsky on October 3, 2008
Public Knowledge

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.



-- 
Richard Lowenberg
1st-Mile Institute
P.O. Box 8001, Santa Fe, NM 87504
505-989-9110;   505-603-5200 cell
rl at 1st-mile.com  www.1st-mile.com

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