Little upside, major downside risk for incumbents challenging proposed broadband stimulus projects

There's an increasing amount of speculation in cyberspace that incumbent telcos and cable companies could opt to exercise a broadband black hole preservation provision in the rules governing the first round of federal broadband stimulus funding applications due Aug. 14. The provision allows incumbent providers to challenge proposed projects in their territories as not meeting the criteria of "unserved" or "underserved" areas under the rules.

Already law firms are warning incumbents that these projects could infringe on their footprints in thinly veiled inducements to challenge or litigate against them. As with lawsuits by incumbents against local governments that have proposed their own fiber to the premises deployments, the goal isn't to prevail on the merits but rather to delay and buy time. Moreover, while the rules place the burden of proof on incumbents to demonstrate a proposed project encompasses census blocks that aren't unserved or underserved, it's likely to be very difficult for project proponents to rebut the incumbents since the rules don't require incumbents to make their own deployment data publicly available.

The problem for the incumbents is that buying more time won't help them since their infrastructures are already built out to the extent their business models permit. Challenging proposed broadband stimulus projects has little upside and significant downside risk: fueling negative public perception and increased scrutiny from regulators likely to view such conduct as monopolistic and contrary to current federal policy to expand broadband access.