Response to TDS Broadband Grant Appeal: Hotchkiss

Last month, the Broadband Deployment Board ("Board") awarded a $1.7 million broadband grant to DMEA for the West Hotchkiss and West Spring Creek areas in Application No. 2018-06. TDS now appeals the Board's award of grant money for the West Hotchkiss area because it allegedly "overbuilds" TDS's broadband network. 

The Board's decision on TDS's appeal will have tremendous consequences for the citizens of West Hotchkiss: if the Board denies the TDS appeal and upholds the award to DMEA, it means that every household in the grant areas will, within a year, have access to symmetrical and measurable 1,000 Mbps/1,000 Mbps broadband service. But if the Board grants TDS's appeal and rescinds DMEA's award, it means hundreds of rural Coloradans in West Hotchkiss will remain unserved with inadequate service from TDS. 

In its appeal, TDS claims the Board's grant will "overbuild" TDS, because TDS plans to use federal broadband money, that was earmarked for a different geographic region, to "directly benefit" citizens in West Hotchkiss. This claim is meritless as both a legal and practical matter. TDS also claims it provides—and will provide in the future—"broadband service" to those same citizens. But as demonstrated by more than a dozen reports from actual TDS customers in West Hotchkiss, this claim also lacks merit. TDS claims that it currently provides service levels to West Hotchkiss that it does not actually provide; there is no reason for the Board to accept TDS's claims about its future performance. 

By way of summary, there are several independent reasons this Board should reject TDS's appeal of the grant to DMEA in Application No. 2018-06: 

1. DMEA's project does not "overbuild" any TDS location receiving A-CAM funding. 

DMEA's application explicitly excluded any addresses receiving A-CAM funding. DMEA engaged a separate independent consultant as part of the appeal process, and that consultant confirmed that no service areas in Application No. 2018-06 overlap with TDS's A-CAM funded areas. 

As detailed below, TDS admits that it has not received federal funding for addresses in the DMEA grant areas, but for entirely different areas. Its unsubstantiated attempt to assert that citizens in West Hotchkiss will meaningfully benefit from federal funding going to a different geographic region should be rejected: DMEA's project does not "overbuild" areas receiving federal funding within the plain meaning of C.R.S § 40-15-509.5(10.9)(b). Moreover, there is no statutory or Board policy prohibition on the build out of a new project in an area that is adjacent to an area receiving federal funds. 

2. The TDS officer affidavit has no bearing on the Board's ultimate determination that DMEA's application meets the minimum requirements. 

TDS's officer affidavit fails both facial and substantive statutory requirements for such affidavits. It refers only generally to several pages of TDS comments and does not state, as required by C.R.S § 40-15-509.5(8)(c), that construction of a broadband network in grant areas receiving federal funding will be complete within the 24-month period. 

3. By TDS's own admission, it does not provide broadband service to a majority of the unserved areas. 

TDS admits that at least 529 of the 751 households in the grant areas (approximately 70%) receive less than the 25 Mbps/3 Mbps speeds required for broadband service. 

4. In any event, TDS's reported available speeds are hypothetical, unreliable and unverifiable; TDS's own customers undermine its assertions about the service levels it provides now and will be able to provide in the future. 

Testimonials from actual TDS customers in the grant areas reveal that, contrary to what TDS claims, many addresses do not receive the "available" speeds of at least 25 Mbps/3 Mbps or greater. Attached to this response are multiple reports from TDS customers directly contradicting the speeds TDS claimed in its December 20, 2018 comments it was providing those specific customers. TDS's claims about the service it currently provides—and could provide in the future—merit serious scrutiny. For example: 

• TDS claimed, in Attachment A to its December 20, 2018 comments, that TDS customer Nancy Harward receives a download speed of 50.1 Mbps. As Ms. Harward details in her attached letter (including speed test screen shots), she only receives a small fraction (2.89 Mbps/0.61 Mbps) of that claimed amount. This seriously impacts her ability to conduct her work as a Certified Public Accountant from home. (See Attachment A.) 

• TDS also claimed its customer Richard Lankin receives download speeds of 50.1 Mbps. As Mr. Lankin details in the attached letter (including speed test screen shot), his service also is a fraction of TDS's claimed speed. As shown in this attachment, TDS candidly admits the poor quality of service it provides. (See Attachment B.) 

• TDS claimed its customer Amy Miller receives download speeds of 33.3 Mbps. As Ms. Miller details in the attached letter, her service averages download speeds of "approximately 3 [M]bps" and upload speeds of "less than 1 [M]bps." (See Attachment C.) 

• 13 total West Hotchkiss testimonials, plus CrowdFiber speed tests contained in Attachment D directly refute TDS's claims of service to the Application No. 2018-06 grant area. TDS's representations about current service—much less future service—are not credible. 

5. The grant areas are unserved and DMEA's subsidiary, Elevate, does not provide broadband service to those unserved areas. 

TDS's appeal arguing that Elevate already offers gigabit internet to the grant areas relied on mapping data that did not accurately reflect available services. OIT has since amended its map to accurately reflect that Elevate does not currently offer internet service within this grant area. 

6. Mountain Broadband does not provide broadband service to the project areas. 

Mountain Broadband's own website refutes TDS's position. 

7. TDS's procedural arguments are not a valid basis for appeal.