ACA's comments, filed April 12, came as the FCC continues work on the second phase of Connect America Fund (CAF) rules that will administer the allocation of $9 billion over the next five years to support broadband deployment in high cost areas that lack an unsubsidized broadband provider and further the task of ensuring affordable and universal broadband access in the United States.
In the comments, ACA offered several reasons for relying on the NBM, including that it is the most accurate and most granular representation of national broadband deployment that currently exists and that the federal government has already made a significant investment in the NBM and will seek to further perfect its data.
"By presuming the NBM's accuracy, the FCC will give providers an incentive to participate further in the data collection process," Polka said, adding that as the NBM is updated and improved, the FCC will be in position to address inaccuracies relatively expeditiously.
ACA noted that price cap LECs will not face an unreasonable burden in making a prima facie case that an area is in fact unserved in challenging designations by cable operators. In the normal course of business to attract customers, small cable operators post their service areas and broadband service offerings. All a price cap LEC needs to do is survey the operator's website and advertisements and, if necessary, call customer service to verify service areas.
By contrast, an obligation on all cable operators, particularly smaller ones, to reaffirm their service territory would not be narrowly tailored because many (if not most) cable operators operate in areas that are not potentially eligible for support. It would be far less burdensome for the price cap LECs to challenge first, in which instance only those operators who are challenged would need to reaffirm their presence.
"The FCC should not want to develop a new map from scratch as incumbent LECs have effectively proposed. That would be an enormous undertaking, stressing and sapping the resources of government agencies and private providers, especially smaller providers. Even assuming that government agencies can even muster the resources to develop a new map, because of the time required and the obligation to comply with the Paperwork Reduction Act, the implementation of CAF Phase II will be delayed," Polka said.
ACA urged that for cable operators, the FCC should maintain 3 Mbps/768 kbps as the proxy for determining whether a census block is served. Virtually all cable operators use a DOCSIS platform, which, once deployed, permits them to easily ratchet up speeds, even if they are only initially providing service at 3/768. By retaining the proxy at 3/768 for cable operators, the FCC will spend scare funds only where needed and will not discourage private investment in broadband facilities.
"As Patricia Jo Boyers, President and Chief Executive Officer of BOYCOM Cablevision, recently told the U.S. Senate Commerce Committee, ‘Our private investments have allowed us to offer broadband speeds comparable to those in urban areas. With new DOCSIS 3.0 technology, BOYCOM will cost-effectively deliver 100 Mbps over our existing networks and we continually seek to push our services to unserved markets wherever possible.'"
BOYCOM operates five core cable systems in rural Missouri that provide video to about 2,000 subscribers and broadband to 3,000 customers over fiber-to-the-home networks that ensure customers have the broadband performance capabilities they need for their businesses, education, and healthcare.
ACA continued to ask that the FCC presume that because cable operators employ the robust DOCSIS platform, they meet any latency requirement. Such a conclusion is supported by the FCC's Measuring Broadband America Report. Further exploration of a cable system's latency performance without clear and convincing evidence to the contrary would be unproductive for the FCC in carrying out its public interest mandate and for cable operators.
ACA also asked the FCC to presume that rural cable operators offering broadband service of at least 4/1 Mbps are doing so at a price and with data usage limits that are reasonably comparable to that offered in urban areas. ACA's conclusion is based on a number of factors, including that in rural areas, cable operators face competition for broadband service from price cap LECs and wireless and satellite providers, most of whom operate nationally or regionally and set prices and terms of services on that basis.
In these instances, ACA members, even those operating in a limited territory, need to be responsive. In addition, many ACA members providing service in rural areas operate in many states and many urban areas in those states and set prices and terms of service accordingly. Finally, unlike voice service, broadband service is not a homogeneous product. Rather, price and performance cannot be separated, and, accordingly the FCC cannot determine whether a price is "reasonably comparable" without also examining performance.
"There are many reasons for the FCC to refrain from establishing comparable rates and terms of service for cable operators to be deemed as ‘serving' an area with broadband," Polka said. "Any effort by the government to impose price or usage allowances - that is, regulate the service - has great potential to lower that return and slow rural broadband deployment."
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