Cox sues state in attempt to block $109 million in funding for rival ISPs

Cox Communications asked a court to block Rhode Island’s plan for distributing $108.7 million in federal funding for broadband deployment. If successful, Cox’s lawsuit could prevent other Internet service providers from obtaining grants to expand into areas that Cox says it already serves with high-speed broadband.

The cable company claims Rhode Island used “flawed Internet speed data” to determine which areas are underserved and that the plan “will benefit wealthy parts of the State already served with high-speed Internet in contravention of the program that it purports to implement.”

Cox filed the lawsuit on Monday in Superior Court in Providence, Rhode Island. It seeks an injunction prohibiting Rhode Island from using the allegedly flawed speed test data to determine where broadband grants should be directed.

The organization overseeing the state’s broadband funding plans quickly issued a response calling Cox’s lawsuit “misleading and unsupported by facts.”

“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,” said the response issued by the Rhode Island Commerce Corporation.

Cox accused of sitting out public process

The Commerce Corporation is a quasi-public agency that is implementing the state’s $108.7 million share of the $42 billion federal Broadband Equity, Access, and Deployment (BEAD) program. It said that Cox is the “state’s leading provider” but “declined to engage in the robust, months-long public planning process on how the Corporation would deploy Rhode Island’s BEAD funds.”

“Cox did not submit public comments on the design of the BEAD program, did not raise concerns at public Broadband Advisory Council meetings (where they are the sole provider represented), and declined to share its network map information during the 90-day Rhode Island Broadband Map Challenge Process. Our planning process was open and participatory, and Cox did not participate,” the corporation said.

Cox disputed the claim. “For over a year Cox has presented facts and evidence as to why Commerce’s broadband plan is flawed and these arguments have been ignored at every turn,” the company said in a statement provided to Ars. “We have shared our mapping data with Commerce—in fact we have a data sharing agreement with Commerce. To state today that this information hasn’t been conveyed is not factual.”

Cox said its officials “met with [Commerce] Secretary [Elizabeth] Tanner and her staff repeatedly to raise concerns,” and submitted formal comments “through its trade association, the New England Connectivity and Telecommunications Association.”

Rhode Island is one of 44 states and territories that have obtained National Telecommunications and Information Administration (NTIA) approval for an initial plan to distribute funds. The approval, granted in July, “enables Rhode Island to request access to funding and begin implementation of the BEAD program,” the NTIA said.

Ookla speed tests in dispute

Cox’s lawsuit criticized Rhode Island’s use of Ookla speed test data. The Commerce Corporation “layered Ookla speed test data from the past 12 months over the FCC map, and ‘reclassified’ as ‘underserved’ any location which had a speed test result of less than 100Mpbs, and also reclassified some locations as ‘underserved’ within census block groups based on Ookla speed test data that did not pertain to any specific location,” Cox wrote.

The Federal Communications Commission’s broadband map is based on submissions from Internet service providers, which in at least some cases were inaccurate. While the FCC has used a challenge process to periodically improve the map’s accuracy, there continue to be complaints about the map claiming unserved or underserved areas have fast broadband. Under the BEAD process, states can investigate availability locally to determine where funding should be directed.

The Rhode Island Commerce Corporation said its plan is “built on fairness, transparency, and a commitment to maximizing the impact of this historic federal investment… and, contrary to Cox’s assertions, parts of the state are indeed unserved or underserved, including areas that Cox claims are affluent. 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.”