Rhode Island officials say a Cox Communications lawsuit could threaten a federal $108.7 million allocation to improve high-speed internet access in the state, so they are pushing ahead with their "Internet for All" plan despite the opposition from Cox.
The U.S. Department of Commerce's National Telecommunications and Information Administration approved the state's plan for broadband expansion in July, allowing Rhode Island access to the funding as part of the Broadband Equity, Access and Development program – or BEAD.
But Cox, one of the state's largest providers of broadband services, filed a lawsuit in R.I. Superior Court on Sept. 23 alleging that R.I. Commerce Corp.'s "digital equity plan" uses flawed data “to build a taxpayer-subsidized and duplicative high-speed broadband internet in affluent areas of Rhode Island.”
Cox also alleges that Rhode Island's plan asks the broadband provider to meet requirements that are “significantly different and exponentially more labor intensive than every other state where Cox offers high-speed internet,” such as a randomized testing requirement that covers 75% of Rhode Island households.
Despite the legal action, the state's planning for broadband expansion is moving forward.
Brian Thorn, director of broadband strategy for R.I. Commerce, says that the lawsuit can pose regulatory risks to the state’s plan, and Rhode Island may be at risk of losing the federal allocation, which is part of the $42.45 billion nationwide BEAD grant program.
“We have a really specific milestone schedule that we have to meet for the NTIA to make sure that we’re moving along in the plan,” Thorn said. "And if this lawsuit disrupts the schedule we have to meet the NTIA’s requirements, then I think it could put [the $108 million funding] in jeopardy."
Indeed, R.I. Commerce advanced its broadband plan on Friday, with the agency announcing a nearly $25 million investment in GoNetspeed and Verizon following a competitive bidding process. The two ISPs will complete infrastructure projects anticipated to provide service to about 6,700 locations in Newport, Jamestown and Westerly.
The three communities were selected based on a formula that included factors such as lack of internet availability at home and lower median incomes. Additionally, the state selected ISPs based on their ability to "deliver speeds of 100/100Mbps without exceeding $53.09/month."
Commerce said it plans to announce an additional round of similar funding within the next few months.
State officials say all aspects of the state's broadband plan were reviewed and approved by the NTIA, which oversees the allocation process, and that Cox did not raise concern with the organization until three days before the end of the monthslong challenge process.
But in a statement Friday, Cox said that R.I. Commerce has repeatedly ignored data requests from the broadband provider and that R.I. Commerce's own mapping data "contradicts our network’s capabilities and our own speed test results as well as the FCC’s National Broadband Map."
Cox also holds that "NTIA’s initial approval was based on faulty mapping and data," said Cox spokesperson William Fischer.
Cox and its trade association, The New England Connectivity and Telecommunications Association, have also "raised concerns [with commerce officials] over a long period of time," Fischer said, with formal comments filed by NECTA in December 2023. Cox representatives met with commerce officials in May and June, Fischer added, and expressed concerns about broadband maps throughout these interactions.
In the Superior Court lawsuit against R.I. Commerce, the telecommunications company says that, according to federal data, a median average of 99.3% of Rhode Islanders have reliable broadband access, making the state one of the highest-served locations in the U.S.
Cox is challenging a map put out by the state that shows 30,000 underserved locations that don’t have high-speed internet access, including homes in some of Rhode Island’s wealthiest neighborhoods, including in affluent parts of Barrington and Newport.
Cox said the state data is wrong because some of the locations the state listed are Cox customers and individual testing showed they had high-speed internet access.
R.I. Commerce says the statistic of 99.3% doesn’t tell the full story of broadband access in the Ocean State.
That median average, drawn from Federal Communications Commission data, “relies on advertised speeds, self-reported by the internet service provider,” Thorn said, “so [an internet service provider] can basically tell the FCC whatever they like.”
While not many in Rhode Island are completely unserved, Thorn says, some remain underserved, meaning their internet speeds are lower than 100 megabits per second download, and 20 megabits per second upload.
To the NTIA’s knowledge, Cox’s lawsuit against Rhode Island is unique, organization spokesperson Lucas Wood-Gluck said in response to a PBN inquiry.
“NTIA is not aware of any lawsuits by ISPs [internet service providers] against BEAD programs in other states,” Wood-Gluck said. “Moreover, 51 of the 56 states and territories participating in the BEAD program either have concluded or are already underway conducting their challenge process.”
But as to whether the lawsuit could impact Rhode Island's grant, Wood-Gluck said that the administration "has no plans to alter any state's funding."
He added, “NTIA is not a party to this lawsuit and has no position on it or any claims made by either party.”
Asked if Rhode Island had imposed stricter standards for ISPs in its plan compared with other states, as Cox has alleged, Wood-Gluck said that the organization doesn't “generally do comparisons between states, and there’s no obvious way to do so considering the many variables that exist in these processes.”
He added, “Every state’s approach to BEAD is different.".
Even before the lawsuit, the state's broadband plans attracted attention from out of state.
In August, Lindsay Mark Lewis, executive director of the Washington, D.C.-based policy think tank Progressive Policy Institute, wrote in an op-ed in Providence Business News that he believed the state's plan would lead to "the buildout of duplicative broadband infrastructure to locations that are already served at the expense of those who truly lack Internet access."
In an op-ed of her own, R.I. Commerce Secretary Elizabeth M. Tanner said the plans were developed over nearly two years of "thoughtful, strategic and participatory planning" with input from stakeholders statewide and a broadband advisory group. In addition, she said, the plans underwent "painstaking scrutiny" by the NTIA and the U.S. Department of Treasury.
So far, R.I. Commerce remains on schedule to meet the milestones required to receive the funding, says Daniela Fairchild, the agency's chief strategy officer. The NTIA has set its final deadline in 2028 but also has a series of checkpoints that the state has to meet before then.
“At this point in time, we are working feverishly to continue to implement our plan and maintain our deadlines,” Fairchild said. “We are full steam ahead, no slowdowns to our work at present.”
(Updated at 2:45 p.m. to add that the agency announces a nearly $25 million investment in GoNetspeed and Verizon to complete high-speed internet projects in Newport, Jamestown and Westerly. Also added was comments from Cox Communications.)
