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  • Guest: Tom Cohen

  • Company: Kelley Drye Law Firm

  • The following transcript has been edited for length and readability. Listen to the entire discussion here on The Broadband Bunch

    Hello everyone, and welcome to another edition of The Broadband Bunch. I’m Craig Corbin. Thanks for joining us today. Never before has the need for broadband access been more critical. Long gone are the days of blindly viewing internet connectivity as a luxury. With our current global health crisis shining a spotlight on the nonstop demand for distance learning, telehealth, and a largely remote workforce, bridging the ever growing digital divide is essential.

    About Tom Cohen

    Craig Corbin:

    Few have done more to positively impact policies and procedures governing federal and state broadband deployment funding programs than our guest today. Attorney Tom Cohen, a partner in the law firm of Kelley Drye, has 40 years of experience in the communications and telecommunications industry sector.  First, as a government policymaker while serving for more than a decade as assistant general counsel for legislation at the Federal Communications Commission, and also as senior counsel for the Senate Commerce Committee. Mr. Cohen then was a founder and principal in firms assessing and developing communications and telecommunications properties, along with advising businesses. Tom joined Kelly Drye in 2005.

    Craig Corbin:

    Mr. Cohen earned a bachelor’s in engineering from the University of Michigan, his Juris doctorate from UCLA, and for good measure, a master’s of city planning from Cal Berkeley. His practice at Kelley Drye focuses on providing legal counsel to further the business interests of entities engaged in the provision of wireline and wireless telecommunications, cable and broadband, including internet services. And he has significant experience in federal and state administrative and legislative advocacy, along with business related legal matters, including contracts, transactions, and litigations.

    Fiber Broadband Association Advocacy for Fiber Infrastructure Investment

    Craig Corbin:

    It is such an interesting time – especially when we talk about what’s going on in the world of broadband. In addition to what I touched on in the introduction, you have done quite a bit of work with the Fiber Broadband Association (FBA). FBA is extremely active in working to further the opportunities to get fiber to as many people around the country as possible. Talk about what’s top of the priority list at the Fiber Broadband Association and the work that you do with broadband policy.

    Tom Cohen:

    The Fiber Broadband Association has done tremendous work since its inception two decades ago in terms of accelerating the deployment of all fiber infrastructure throughout the country. Who would have thought 20 years ago that we would have fiber networks pass some 50 million homes today? It’s stunning that everybody is talking about wanting fiber connectivity.  It is the most robust, the highest performance, most reliable transmission media. If you have fiber connectivity then you’re set to work remotely, access the internet, have tele-health appointments… everything, and that’s why people are clamoring for it.

    Craig Corbin:

    When we talk about the current situation with the pandemic and how that has created a new normal with regard to the percentage of the workforce that is now working from home, the demands on having connectivity are greater than ever before. Do you feel that perhaps this is an opportunity, if there were to be a silver lining to this situation, to really focus on getting connectivity to as many Americans as possible?

    Tom Cohen:

    The short answer is yes. Let’s break this down a bit. First of all, over the past decade or so, broadband providers, wireline, wireless, have invested $700-800 billion in their networks. That’s just such an enormous amount. And as a result, earlier this year when everybody went online full time, those networks held up. Just imagine going back 20 years if this same pandemic had occurred in 2000.  Could we have worked from home, stayed in touch with Zoom or FaceTime video chats? Could we have engaged in all the other activities, telehealth, online learning that we wanted? The answer’s no.

    The Fiber Digital Divide

    Tom Cohen:

    And so we’ve had this incredible investment driving us where we are, yet we know there are gaps we need to fill in. Many rural areas don’t have fiber. We need to get it to them. The FCC has been heading in that direction. And with the new Rural Digital Opportunity Fund auction coming in October, it’s going to move us in that direction even further.

    Tom Cohen:

    We know there are issues with online learning and helping particularly low income students get that type of robust connectivity they need for online learning. As we see people are talking about are schools going to reopen in the fall? Or are they going to go virtual? We know there’s going to be a lot of virtual learning so what can we do to get that type of robust connectivity to everybody?  It’s a real good news story of everything we’ve done, yet we all know there are gaps we need to fill.

    Craig Corbin:

    You mentioned that connectivity for students is a huge focus. Do you think that perhaps that will spur any potential providers to dip their toe in the water and to pursue becoming broadband providers?

    Tom Cohen:

    We’ve had the FCC’s E-Rate program for some time. It goes back to the 1996 Telecom Act. At first, it was for simple connectivity, and then the FCC, about five years ago, emphasized fiber connectivity. So we’ve gone a long way at getting schools connected, now what we need to do is make sure all their students, when they’re offsite, are connected. The easiest way is there are a bunch of providers already out there, wireline providers, that can fill the bill and get that type of connectivity quickly. I think what we’re talking about are enhancements to that program, and how do we drive it to make sure that it’s the low-income students that get connectivity.

    Craig Corbin:

    Key in that discussion is that already we’re seeing metrics which show that when there are gaps in the educational opportunity and the access to it, that those students are falling behind in rapid fashion. There’s huge concern from many corners that some of those students will never be able to make up that deficit.

    Tom Cohen:

    There’s no doubt about it. There are many sides to this issue. Connectivity is one of them, figuring out how you teach online and keep students’ interests and help them move ahead is another. There are a lot of pieces to this puzzle, but at the bottom of it all, you need to give them robust connectivity. That’s an essential. Without that, you don’t get anything else.

    Craig Corbin:

    You referred to the Rural Digital Opportunity Fund, or RDOF, one of many government funding opportunities.  You have been very involved in working on that for a number of people. What can RDOF potentially bring to the country with regard to opportunities for expanding networks?

    Tom Cohen:

    The FCC, after the national broadband plan was adopted some 10 years ago, began to pivot in terms of how they were going to provide support in unserved areas to build more robust broadband service. And they started slowly. They had focused first on areas without 4 Mbps/1 Mbps broadband. It’s tough to believe that these days. They originally gave out money, 5-6 years ago, to the larger incumbent carriers, price cap carriers, to build only 10 Mbps/1 Mbps broadband. Many of us were disappointed in that, particularly the Fiber Broadband Association.

    Funding High Speed, High Performance Fiber Broadband

    Tom Cohen:

    Over the years, that program has moved along, but at the end of the day, what are those consumers in those areas getting today? Low speed broadband, inadequate broadband, and many thought the FCC was giving out too much money as well to get low speed broadband.

    Tom Cohen:

    Fortunately, the FCC has pivoted, and with the Connect America Fund II (CAF II) auction, it began to see we could use auctions to give out funding more efficiently. Now with the new Rural Digital Opportunity Fund, we could also emphasize higher speed, higher performance broadband service. So we can both drive down the price and get better service. The auction, which begins the end of October, has real potential to bring all fiber service to millions of additional homes in the country.

    Craig Corbin:

    When you talk about a fund of better than 20 billion, that is potentially life-changing for many, many Americans.

    Tom Cohen:

    The first phase is a little over 16 billion, and it will be life changing. You have to give credit to the chairman, Ajit Pai, for adopting this new policy. There were many members of the United States Senate that encouraged him to do so. All of a sudden, we’ve begun to flip and see it’s not just giving about giving funding for the lowest price, we also have to provide funding for the best performance at the same time. Now what you see is legislation moving through the House that says what we need to do is expand upon the Rural Digital Opportunity Fund program. The amounts of money are, 20 billion, 40 billion, even 80 billion, in order to complete this task. Which, according to the Fiber Broadband Association’s study, should bring it to better than 90% of the homes in this country within the next five to 10 years. And that’s life changing.

    Craig Corbin:

    With the increased baseline to a bandwidth of 25/3, then that makes a difference as well. You referred to legislation working through Congress and obviously policy concerns have political implications. With the time that you’ve spent in D.C., what are the biggest challenges that you see for these efforts in moving forward?

    “Light Touch” Regulation of Telecommunications Facilitates Investment & Innovation

    Tom Cohen:

    Communications may be one of the less politicized areas. It’s not to say it isn’t, but I think a consensus has developed over many years that the best way to drive broadband and investment in broadband and all fiber networks is to let the private sector move forward with light touch regulation. This has been a policy that goes back almost 50 years ago when it was decided that regulation, traditional utility regulation, stifles investment and innovation.

    Tom Cohen:

    At the beginning, you talked how long I’ve been doing it, well, I go back to before AT&T was broken up. I participated in that. You may remember that we used to get a choice of a black phone or a maybe they’d put a different color cover on it.

    Tom Cohen:

    But that was it. What we have found is by opening the market, particularly facilitating entry, letting people in, we have now, in some markets, multiple choices of wireline broadband providers. With 5G coming, you’re going to have the mobile providers with higher speed broadband capabilities, and you have other new entrants into this business. Now, they’re even talking low earth orbit satellite.

    Tom Cohen:

    The idea is to open up the market, let people in, light touch regulation, and then where the market’s not working, fill in those gaps as quickly as you can.  Now the House of Representative is looking to filling in those gaps with new support programs that target unserved areas. Quite frankly these days, 25/3, especially from the Fiber Broadband Association’s perspective, doesn’t cut it.

    Tom Cohen:

    What you’re looking for and what the Fiber Broadband Association put on the table is symmetrical gigabit service. This was in the legislation introduced by Representative Clyburn of South Carolina, and others are beginning to pick it up. In a sense, while we may talk about speed and the like, what people are really looking for is quality of experience, and that means both downstream and upstream speeds that meet their needs. Particularly, as you get multiple devices in a household and multiple devices that need video, you need that capability. Moreover, you need low latency and you need reliability.

    Tom Cohen:

    The wonderful thing with all fiber networks, in effect, once you put them in, they are future proof. You add your electronics, your hardware, you add your software, and the performance capabilities, I don’t want to say they’re infinite, but boy, they’re far beyond even what we think about today. I just saw the other day someone’s offering, forget gigabit symmetric service, they’re offering 10 gig symmetric service. It’s incredible.

    Fiber Broadband Association Public Policy

    Craig Corbin:

    There is so much work that is going on in the Public Policy Committee at the FBA. What are some other things that are on target now for the committee?

    Tom Cohen:

    We are constantly looking to remove barriers to deployment. We’ve worked on facilitating access to poles, ducts and conduit, both in terms of the speed of access and trying to lower the cost. That cost becomes material as you build out. We’re trying to do the same thing with public and private right of way – speeding access, lowering the cost, to facilitate builds as best you can. Then, we’re working on these subsidy programs to ensure that the targets are more than 25/3. The idea again is, if you spend it once to put in fiber, you don’t have to keep coming back. That was the mistake the FCC made in the early Connect America Fund programs. They just incrementally dialed up the performance. And what’s happening? We’ve got to go back and do it again. So the key is, is do it once, do it right. We’re working on that.

    Tom Cohen:

    We also recently proposed to the National Telecommunications and Information Administration an overall fiber acceleration strategy, including this gigabit symmetric target, removing barriers, and facilitating entry. Which from Fiber Broadband Association’s viewpoint, means that if the private sector’s not building, then it isn’t just government subsidy, but it is government entry. We’ve seen where municipalities are saying to the private sector, “Either you come in or we’re going to do it,” because broadband is essential. We need to get all fiber connectivity.

    Tom Cohen:

    Another target is workforce training and education. What we’re finding is, as we rush to build all fiber networks, we need more people out there or else it becomes a real gap in terms of our ability to accelerate deployment. The President and CEO of the Fiber Broadband Association, Lisa Youngers, has made this a focus and has a new committee focusing on this. Lisa’s also on the FCC’s Broadband Deployment Advisory Committee on this workforce training issue. So we need to look at what barriers are out there and lower them as quickly as we can.

    Craig Corbin:

    You referenced the government subsidies, the programs that are there to potentially fund tremendous expansion of networks. Part of that equation is the definition of what areas are unserved or underserved, and that is dependent upon mapping existing providers. That’s been a concern over the years with regard to the accuracy of the data. From your perspective, are you beginning to see a move toward methods that might provide more accuracy than what we’ve had in the past?

    Defining Unserved and Underserved Broadband Areas

    Tom Cohen:

    It’s been a real concern, the accuracy of the maps. The FCC focused on this a year ago by adopting the Digital Opportunity Data Collection, which is requiring wireline providers to change from just saying, “Are they in a census block?” to saying, “Here is the shape file or polygon of my coverage area.” Then we added to that when Congress passed legislation, the Broadband Data Act, earlier this year.  A month ago, the FCC began to implement that Act which will build on this polygon coverage, and over time, create a national map geo-locating every, in a sense, location where broadband can be provided.  Then the providers are going to have to submit data based on that – showing where exactly are they providing service?

    Tom Cohen:

    We’re getting there. It’s going to take a little bit of time. One of the things with the RDOF auction, permitting it to go forward, is that these are completely unserved census blocks. There’s really no mapping issue with those because we know they are not served by broadband at speeds of 25/3.

    Tom Cohen:

    The other question you asked is, how do you define unserved? It once was the areas that didn’t get 4/1 broadband, then it was 10/1 broadband and now it’s 25/3. The discussion now is, is that where we should be today? Should we not be at 100/20 instead?

    Tom Cohen:

    The Fiber Broadband Association said, in a sense, cut out the middleman. It’s any area that’s not getting fiber. Let’s start really going to what we need instead of some interim technology. What we want to do is get all fiber networks out as far as we can. We’re not there yet. This is what the debate is about – what’s unserved. The concept of underserved is a bit squishy as to what it means so that’s why policy makers have really tried to say, “Is the area unserved or not?” and use that as the basis for moving forward.

    Craig Corbin:

    Another topic that is of interest in the industry is that of spectrum allocation and reallocation. What are your thoughts on that topic?

    Broadband Spectrum Allocation & Reallocation

    Tom Cohen:

    I think it’s always moving slower than the wireless providers want, but the amount of new spectrum the FCC has allocated for commercial use over the past 3-4 years has been incredibly significant. The millimeter wave bands e.g. 24, 28, 37, 39, 42 etc. they’ve already held the auctions on those. It’s taken a while to get the 3.5 CBRS spectrum out there, but that auction is ongoing right now. Later this year, they’re going to do the very important C-band auction, 3.7 to almost 4.0 mid-band spectrum.

    Tom Cohen:

    So a lot of spectrum is going out the door. This has been great. It’s going to get tougher. The CBRS spectrum is, in a sense, an experiment because it’s spectrum sharing with environmental sensing technology and sort of “on the fly sharing” of spectrum. We’re going to see if it works because it’s going to be required as you move forward. It’s just tough finding new spectrum to allocate for commercial use.

    Tom Cohen:

    One critical part of this is there’s a real nexus between reallocation or allocation of this spectrum and fiber. Anybody who knows about 5G knows underlying those networks is fiber connectivity, an incredible amount of fiber connectivity, especially as cell sites shrink. When we get micro cells or small cells for fronthaul, backhaul, or midhaul, you’re looking generally at fiber to make it happen.

    Tom Cohen:

    As you think about this going forward, there are two fundamental technologies for our future, fiber and 5G. And quite frankly, fiber is the more basic. It’s providing both the direct connectivity to homes and businesses and institutions and providing the underlying connectivity for wireless service.

    5G & Fiber – Essential Twins

    Craig Corbin:

    That’s the perfect segue into 5G and how fiber is essential as the backbone for everything. What are your thoughts with regard to the speed with which 5G will become reality, given the tremendous demand for infrastructure required to deliver it?

    Tom Cohen:

    You’ve already gotten the major mobile carriers, AT&T, Verizon, (T-Mobile is a little lagging) trying to move as quickly as they can. Of course you go to the major markets where the money is first, and even in the major markets, you go to the denser areas where there is a need for that 5G connectivity. And they’re rolling it out. They will keep pushing it as fast as they can. For a company like Verizon, they have increased their focus on their network as their fundamental asset. They understand they want to be the leader here, but AT&T is moving as well. And as I said, T-Mobile will follow. It’s going to happen, this level of investment, this level of connectivity. And it’s going to be twinned with fiber because it has to be.

    Tom Cohen:

    Look at Verizon. Verizon, several years ago, acquired XO Communications’ fiber. It acquired fiber in Chicago from WOW!. It understands those twin assets any leading company needs to have to provide service for the future, 5G and fiber. We’re going to see this incredible investment. Verizon invests close to 20 billion a year in their network. AT&T, the same thing. They’re going to keep it up, but they’re going to try to pull away from everybody else.

    Tom Cohen:

    Look again at other providers moving into this market, Comcast, Charter, same sort of attitude. Altice I just saw is revving up its fiber connectivity and they’re moving into wireless service as well. So you can begin to see four or five major league providers busting out of this and moving forward.

    Broadband Choice Enabled By the 1984 Breakup of ATT

    Craig Corbin:

    It will be interesting to see how that transpires and also how quickly we can handle the demand for the material required for this phenomenal expansion of infrastructure. That is something we will eagerly await and watch as it develops. When you look back over the years of service that you’ve given to the industry, what would you say has been the most interesting part of your career?

    Tom Cohen:

    I have to say my time in government was incredibly interesting because we were there almost at the beginning when attitudes changed from a need to regulate, to an attitude that competition will best serve consumers interests.  I talked about being there at the time of breaking up AT&T.  I was also there for the entry of cable into major urban markets and enabling that to happen in the 1980s. I just saw that Reese Schonfeld died. He was the key behind CNN. It launched in 1980, 40 years ago, believe it or not- by satellite. That was the beginning. We began to see we’re moving from three networks, broadcast networks, to a plethora of programming. With the AT&T breakup, we enabled more entrants like MCI and Sprint and others at that time. With cable’s entry, they started as video providers, and less than 20 years later, they moved into telecom and broadband and began to invest and develop their HFC DOCSIS platforms, and now they’re moving into all fiber.

    Tom Cohen:

    What has been just so incredible is this opening, giving consumers choice and letting them make the call at the end of the day. As we talked at the beginning, you once had a choice of a black phone or a black phone. It was a dial phone, not even push button. Now, no one even thinks about that, and it’s enabled companies like ETI to flourish as software providers. We’re making this pivot not only to 5G and fiber on sort of a hardware side, but now everybody’s talking about open networks for equipment, plug and play, equipment that enables any software to come on top of it. This is just mind boggling from where we came from, this change.

    Craig Corbin:

    Quantum leap after quantum leap.

    Tom Cohen:

    And we’re going to keep going. I mean, the foundation is there. And as I say, the players are racing ahead.

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