- Cox is suing the state of Rhode Island’s broadband office over its map challenge process related to BEAD
- The service provider said the state’s mapping process required Cox to do the “impossible”
- The state argued back that Cox should have been more involved all along
Cox Communications has a beef with the Rhode Island broadband office.
The operator fears Broadband Equity, Access and Deployment (BEAD) funds will be used to overbuild its network in areas of the state that it said it already adequately serves. But Rhode Island’s State Broadband Director Brian Thorn told Fierce Cox should have been more involved in the state’s mapping process instead of waiting until the 11th hour to complain.
In late September, Cox filed a lawsuit against the Rhode Island Commerce Corporation, which runs Rhode Island’s state broadband office. Cox claimed the state is using flawed internet speed data for its broadband map. And it said this harms its business because the map makes it appear that areas where Cox serves internet are “underserved” for purposes of BEAD. The state of Rhode Island has been allocated $108.7 million for the BEAD program, which will go toward building broadband networks in un- and underserved areas.
In its complaint, Cox said Rhode Island’s map challenge process was way too cumbersome and made it “impossible” for Cox to verify that all its locations were indeed served. And it complained that the state broadband office overlayed Ookla speed test data on top of the Federal Communications Commission’s broadband map and reclassified numerous locations as “underserved,” which had previously been classified as “served” on the FCC’s map.
In a conversation with Fierce, Thorn said Rhode Island did indeed purchase a license for Ookla’s speed test data to “get more granular” on the FCC’s map. He added the use of Ookla’s data was part of the state’s map challenge process, which was pre-approved by the National Telecommunications and Information Administration (NTIA) as part of the state’s initial BEAD proposal.
In terms of the process for Cox to verify that locations were served, Thorn said Cox waited until the very last minute to object. Rhode Island’s map challenge process ran for 90 days and was scheduled to end on July 6, 2024. Cox sent a letter to the broadband office on July 3, right before the 4th of July holiday, to object to certain aspects of the process.
Cox wants the broadband office to accept Cox’s own speed test data to validate that areas it serves meet the requirement of 100/20 Mbps.
In response to Cox’s lawsuit, the Rhode Island broadband office said Cox declined to engage in the months-long BEAD public planning process, did not submit public comments on the design of the BEAD program, did not raise concerns at public Broadband Advisory Council meetings and declined to share its network map information during the Rhode Island broadband map challenge process.
For its part, Cox also complained that areas in affluent neighborhoods in Rhode Island — such as the Breakers Mansion in Newport and areas of Westerly — are now classified as underserved.
But the broadband office stated, “Whether an area is affluent or not has no bearing on the type of broadband service that is — or is not — available in that area.”
The broadband office added, “Our planning process was open and participatory, and Cox did not participate.
“Let’s be clear about what’s behind Cox’s lawsuit: It is an attempt to prevent the investment of $108.7 million in broadband infrastructure in Rhode Island, likely because it realizes that some, or even all, of that money may be awarded through a competitive process to other internet service providers.”
Other reaction to the Cox lawsuit
Deborah Ruggiero, who was a Rhode Island state representative for 14 years through January 2023 and who is on the state’s Broadband Advisory Council, said Cox is free to bid for BEAD money like any other ISP.
She said in her opinion Rhode Island has suffered from a lack of broadband competition, and she’s heard a lot of complaints from citizens about the quality of their broadband service.
“Cox has had the lion’s share of business here,” said Ruggiero. “Many businesses were saying to me as the state representative that ‘our internet speeds are terrible.’”
Gigi Sohn, executive director of the American Association for Public Broadband (AAPB), warned Cox’s lawsuit could set a bad precedent. “What’s important to me is that if somebody doesn’t push back hard on this, every aggrieved ISP with big pockets is going to sue the states where they don’t like the result,” she said.
What’s next?
The Rhode Island broadband office has filed a Motion to Dismiss the case filed by Cox. The motion says that any complaints about the state’s broadband mapping process are required to be filed in the U.S. District Court for the District of Columbia, rather than in the Superior Court in Rhode Island. And the motion says Cox should have included NTIA and Ookla as defendants because they are “indispensable parties.”
If the case gets dismissed in Rhode Island, the ball will be in Cox’s court for next steps. If the case does not get dismissed, then the Commerce Corporation for the state will file an official answer to Cox’s complaint.
Fierce asked if Cox’s suit in Rhode Island could cause other service providers in other states to file lawsuits against their state broadband offices. Christopher Fragomeni, counsel for the Rhode Island Commerce Corporation, said, “I think it’s too early to know at the moment. It’s possible, sure. But also possible this case gets dismissed over the next 60 days.”
Thorn concluded, “We’re ably working through the litigation, but at the same time our small broadband office is full speed ahead.”
