There is no such thing as a 25/3 Mbps broadband connection, or a 100/20 Mbps broadband connection, or even a symmetrical gigabit broadband connection on fiber. For a long list of reasons, the broadband speeds that make it to customers vary widely by the day, the hour, and the minute. And yet, we’ve developed an entire regulatory system built around the concept that broadband connections can be neatly categorized by speed.

I don’t need to offer any esoteric proof of this because every person reading this blog can easily prove this for themselves. Connect a computer directly into your incoming broadband connection and take a speed test multiple times throughout the day. Speed tests taken even minutes apart can vary by more than 10% and, depending upon the technology, can vary far more than that over a 24-hour period. What’s the speed being delivered to and from your home if the speeds you measure vary by 20%, 30%, or 40% over the course of a day? Assigning a single speed to describe your home’s broadband connection is a total fiction.

What do regulators mean when they set a speed definition of 25/3 Mbps? Does that represent the slowest speed that can be achieved, the fastest speed that can be achieved, or the average speed? There is no consensus on that. When a telco says it can deliver a speed of 25/3 Mbps, the company is implying that it is capable of that speed but doesn’t guarantee it. When a homeowner buys a 25/3 Mbps connection, they view it as a speed they should be receiving and feel cheated if they get something slower. I’ll be honest—I have no idea what regulators think 25/3 Mbps means in the real world.

I would hope that every regulator understands that speeds are a convenient fiction that the FCC invented as a way to classify homes as having or not having broadband. A home connection that achieves 25/3 Mbps or something faster is considered to be broadband—anything slower is not considered to be broadband.

The big ISPs have always understood that choosing a speed to describe a broadband product is mostly symbolic in nature. Big ISPs regularly take advantage of the official definition of broadband to suit their goals. If a telco wants to create a regulatory block to keep away competitors, it will overstate performance and declare its DSL to be 25/3 Mbps. But if having a slower speed means getting a subsidy, the same telco is likely to declare that speeds are less than 25/3 Mbps. Neither of those choices of naming the speed has anything to do with the actual broadband product being delivered—it’s just different manifestations of the speed fiction. Unfortunately, the pretense that ISPs can or cannot deliver certain target speeds has had real-life consequences. There are numerous communities that have been badly harmed by being denied broadband grant funding in the past because a big telco claimed the fictional broadband speeds of 25/3 Mbps.

It seems likely that the FCC will increase the definition of broadband to something like 100/20 Mbps in the upcoming year—and that is not going to stop speed from being an issue. Cable companies spent a lot of lobbying effort during the last year to make sure that the Congressional broadband grants can only be used in neighborhoods that don’t meet the speed requirement of 100/20 Mbps. The cable companies all swear they already meet that speed definition, and that means that the federal grants can’t be used to overbuild an existing cable company. It also means the cable companies can propose to use grant money to extend their coaxial technology outside current markets.

Our firm recently worked with two county seats that are served by big cable companies, and as part of those studies, we had residents take speed tests. With over 1,000 speed tests from cable customers, less than a dozen speed tests showed upload speeds faster than 20 Mbps upload, and over half had upload speeds of 10 Mbps or less. While many download speed tests were faster than 100 Mbps, about a fourth of download speed tests were under 50 Mbps. Do the cable companies in these towns provide 100/20 Mbps broadband? The speed tests would suggest that the cable companies aren’t meeting that speed definition for more than a tiny percentage of customers. These two towns (and most places that are served by a cable company) will fail a new FCC definition of broadband that requires 20 Mbps upload.

This all goes to show that a federal definition of broadband is a symbol only, a fiction. We already know that every cable company is going to swear that it meets the 100/20 Mbps definition of broadband—even when actual speed tests show this to not be true. They are going to say that their technology is capable of delivering upload speeds of 20 Mbps and that it doesn’t matter that they are underperforming. The cable companies worked hard to make sure that grants defined upload speeds as 20 Mbps rather than the 100 Mbps that was in the first draft of the Senate infrastructure bill. Just as the telcos manipulated the 25/3 Mbps definition of broadband to meet their purposes, the cable companies are going to do the same with 100/20 Mbps. It’s going to be shocking if any of the $42.5 billion in grants is used to overbuild a cable company—even if a cable company is badly underperforming.

The big ISPs have become masterful at using the federal speed definition to meet their purposes. The big federal grants include the worst of both worlds. They still have a test of defining unserved locations at 25/3 Mbps, allowing telcos to challenge any grant application. And the grants can be used to fund places with speeds up to 100/20 Mbps, allowing the cable companies to argue that the funds can’t be used to compete against them. It’s obvious that the big ISPs had a huge hand in drafting the federal grant language.

For years I have cringed every time I see a federal document that references 25/3 Mbps—because I know that the way that number is being used is a far cry from the broadband actually being delivered to homes. The definition of speed ought to be based on technology and not on the fiction of meeting achieving an imaginary speed goal. If the FCC wants to allow federal grants to overbuild DSL, they should say so. If they want to protect cable companies from competition, they should say so. But a policy that favors or disfavors certain technologies will never fly in a country where lobbyists influence policy. Instead, we’re going to keep seeing definitions of speeds that give the big ISPs the ammunition they need to fight against competition.