The Federal Communications Commission (FCC) estimates there are 18.3 million Americans who lack access to fixed broadband in the United States that meets minimum Internet access speed of 25/3 Megabits per second (Mbps). However, as we have reported numerous times here and discussed in various podcasts, the FCC maps almost certainly overstate actual broadband coverage. Some studies indicate the FCC is undercounting the number of people in the U.S. without fixed broadband access and that there may be as many as 41 million people without access.
ILSR December 2, 2020 | Posted by Sean Gonsalves
As House GOP leaders ask the Government Accountability Office to audit the U.S. Department of Agriculture (USDA) ReConnect program because of concerns federal funds are being used to “overbuild,” Democratic leaders in the House and Senate have filed legislation that aims to build broadband infrastructure on a national-scale.
The Accessible, Affordable Internet for All Act is a bill that harkens back to when the federal government – through FDR’s Rural Electrification Administration, established in 1935, and the Rural Electrification Act, passed by Congress in 1936 – invested in local cooperatives and brought electricity to the abundance of Americans still living in candle-lit homes without electrically-powered refrigerators.
The proposed legislation may well frame the Democratic agenda on broadband moving forward, as the Biden administration enters the White House in January. It’s a bold bill that has garnered the support of a who’s-who of broadband experts and advocacy organizations from Public Knowledge, the National Consumer Law Center and New America Foundation’s Open Technology Institute to the Benton Institute for Broadband and Society, the Electronic Frontier Foundation, and the National Digital Inclusion Alliance.
Breaking it Down
There’s a lot to unpack in this bill, which is why we are publishing a series of posts exploring the major sections contained in the proposed legislation. This first installment is the 30,000-foot view. Forthcoming posts will examine the legislative details where the devil – or the better angels – can be found.
Broadly, the Accessible, Affordable Internet for All Act calls for a $100 billion investment to build high-speed broadband infrastructure that targets unserved and underserved parts of the country. It aims to ensure that every household has affordable and reliable access to online education, telemedicine, remote work, and other business opportunities in which Internet connectivity can no longer be considered a mere luxury, but a necessity.
In the U.S. House of Representatives, the legislation, which has already passed in the House, is being led by House Majority Whip James E. Clyburn (D-SC) and members of the House Rural Broadband Task Force. The Senate version of the bill was filed in July by U.S. Senator Amy Klobuchar (D-MN), co-chair of the Senate Broadband Caucus, and is being co-sponsored by Senators Brian Schatz (D-HI), Mark R. Warner (D-VA), Ed Markey (D-MA), Cory Booker (D-NJ), Elizabeth Warren (D-MA), Catherine Cortez Masto (D-NV), Jacky Rosen (D-NV), and Vice President-Elect Kamala Harris (D-CA).
“When we invest in broadband infrastructure, we invest in opportunity for every American,” Klobuchar said when the bill was filed. “In 2020, we should be able to bring high-speed [I]nternet to every family in America — regardless of their zip code — and this legislation is a critical step to help bridge the digital divide once and for all.”
As has become apparent since the pandemic lockdown last spring, the “underserved (and unserved) communities” in America comprise a significant portion of the U.S. population. The Federal Communications Commission (FCC) estimates there are 18.3 million Americans who lack access to fixed broadband in the United States that meets minimum Internet access speed of 25/3 Megabits per second (Mbps). However, as we have reported numerous times here and discussed in various podcasts, the FCC maps almost certainly overstate actual broadband coverage. Some studies indicate the FCC is undercounting the number of people in the U.S. without fixed broadband access and that there may be as many as 41 million people without access.
The Accessible, Affordable Internet for All Act proposes to address the digital divide and encourage universal broadband access by:
- Allocating $80 billion to deploy high-speed broadband infrastructure across the nation.
- Earmarking $5 billion for low-interest financing of broadband deployment through a new secured loan program.
- Establishing a new office within the National Telecommunications and Information Administration to ensure efficient use of federal money.
It aims to ensure affordability by:
- Requiring an affordable option for Internet service plans offered on the newly-built infrastructure.
- Providing a $50 monthly subsidy for low-income consumers.
- Directing the FCC to collect and publicize data on prices charged for broadband service throughout the country.
The bill looks to promote adoption by:
- Providing over $1 billion to establish grant programs for states to close gaps in broadband adoption, as well as digital inclusion projects for organizations and local communities to implement.
- Including $5 billion to enable students without Internet at home to participate in remote learning.
- Authorizing funding for Wi-Fi on school buses so students can stay connected, especially in rural areas where longer bus rides are common.
A Wealth of Support, But No Guarantee
Joining a chorus of expert voices in support of the bill, Gigi Sohn – Distinguished Fellow at the Georgetown Law Institute for Technology Law & Policy, former senior adviser to FCC chairman Tom Wheeler, and one of a handful of names floated as a possible new FCC chair in the Biden administration – lauded the proposed legislation:
The Senate version of the Accessible, Affordable Internet for All Act includes all of the critical provisions of the House version, but goes even further to address this country’s gaping digital divide. Like the House bill, it addresses the twin problems of broadband affordability and lack of network infrastructure and seeks to promote competition in a consolidated market by preferencing open access networks and repealing state laws that prohibit communities from building their own broadband networks. In addition, the Senate bill would expand the FCC’s Rural Health Care program to provide funding for telehealth programs in urban as well as rural areas, and would create a fund to ensure that higher education students in need have access to robust broadband during the COVID-19 pandemic. The pandemic has laid bare the need for every American to have robust, high speed broadband Internet access at home … It is long past time for Congress to act. Thanks to Senator Klobuchar and her Senate colleagues for co-sponsoring this vital legislation. The Senate should pass this bill without delay.
Prospects for passage of the bill, however, hinges on the outcome of the U.S. Senate run-off races in Georgia, as was noted in an op-ed published in the Albany Herald last week, co-authored by Clyburn and Georgia Congressman Sanford Bishop.“The votes of Georgians on Jan. 5 will determine whether 1 million Georgians and millions more across America are swiftly connected to the [I]nternet so they can participate fully in 21st-century commerce, health care, and education,” they wrote.
If the Democrats prevail in Georgia, it would tip the scales of power in the U.S. Senate where, Clyburn and Bishop lament, “Senate Majority Leader Mitch McConnell, assisted by Sens. David Perdue and Kelly Loeffler, has buried the legislation in his graveyard.”
Last week we began our broad overview of the Accessible, Affordable Internet for All Act, sweeping legislation that calls for a $100 billion investment in broadband infrastructure in unserved and underserved parts of the country, as well as federal funding and coordinated support to meet the myriad of barriers that prevent tens of millions of Americans from having access to affordable and reliable Internet connectivity.
The bill (H.R. 7302) has already passed in the U.S. House of Representatives led by House Majority Whip James E. Clyburn (D-SC) and members of the House Rural Broadband Task Force. The Senate version of the bill (S. 4131), which was filed by Minnesota Senator Amy Klobuchar, co-chair of the Senate Broadband Caucus, has stalled, thanks to Senate Majority Leader Mitch McConnell who has “has buried the legislation in his graveyard,” in the words of Rep. Clyburn.
In this second-installment of a series of posts exploring the major sections contained in the proposed legislation, we look at the “Title I – Digital Equity” portion of the bill.
New Office of Internet Connectivity and Growth (OICG)
The first thing the legislation does is requires the Assistant Secretary of Commerce for Communications and Information to establish an Office of Internet Connectivity and Growth (OICG) within the National Telecommunications and Information Administration (NTIA). The new office, which would be allocated a $26 million annual budget, would run point on federal outreach to communities who lack access, or need better broadband access, via regional workshops, trainings, and the drafting of reports that would provide guidance on best-practices.
The office would also be required to track federal spending on any broadband related expenditures, as well as coordinate with other federal agencies to conduct a study on how affordability factors into households’ lack of connectivity and what might be done to make broadband more affordable.
Another important duty of the OICG is a requirement to coordinate with other federal agencies to streamline the application process for assistance for federal programs that support broadband deployment and adoption.
Digital Equity Grant Programs
Where the legislation starts to get interesting is in the subsection on the State Digital Equity Capacity Grant Program, in which the bill calls for the allocation of $60 million for grants to help states develop a “Digital Equity Plan” and $625 million in grants to help states implement those plans, with no less than five percent of the grant funds to be set aside specifically for Indian tribes, Alaska Native entities, and Native Hawaiian organizations.
This grant program represents something new and important because federal funds for broadband are typically funneled to Internet Service Providers (ISPs) or network owners, not so much for planning.
Another new grant program the legislation would establish is the Digital Equity Competitive Grant Program, which would appropriate an additional $625 million to award grants to local entities, tribal governments, Alaska Native entities, Native Hawaiian organizations, non-profits, anchor institutions, educational entities, and workforce development programs for “digital inclusion activities,” which the legislation defines as initiatives that provide for reliable broadband service; Internet-enabled devices; digital literacy training; technical support; and promotion of online privacy and cybersecurity.
One small but important detail in the Digital Equity Competitive Grant Program portion of the bill is that these particular funds are not subsidies to make Internet access more affordable – they are for activities to improve digital inclusion, such as raising awareness of subsidies already available to those unable to afford broadband service, including subsidies available through the Federal Communications Commission (FCC) administered Lifeline program.
For those counting at home, the legislation calls for $625 million to go to states and another $625 million to go directly to those entities doing digital inclusion activities.
The last part of Digital Equity Programs section requires the Assistant Secretary of Commerce for Communications and Information to report to Congress annually on these grants and assess how each grant had been implemented.
Bridging the Affordability Gap
The next section of the legislation – Broadband Service for Low-Income Consumers – looks to provide relief for households who cannot afford to pay for broadband services, which has become especially acute during the pandemic. The federal government does not bother to track the cost of broadband service, despite that recommendation in its own 2010 National Broadband Plan [PDF] (see recommendation 4.2 on page 43), but U.S. prices for Internet access generally reflect a failed market.
A $9 billion appropriation to be administered by the FCC establishes a “Broadband Connectivity Fund” for qualified households to receive up to a $50 monthly benefit, or $75 per month on tribal lands, that would go towards the monthly price of Internet service. Eligibility would be determined based on whether a member of the household qualifies for Lifeline, is enrolled in a free/reduced school lunch program, or has been recently unemployed. Internet Service Providers (ISPs) would be required to offer eligible households broadband service at a reduced price equal to the benefit and then be reimbursed by the FCC. In addition to the monthly benefit for service, the legislation also includes reimbursements of up to $100 for ISPs to provide a device per eligible household.
In the following subsection, the legislation looks to remedy the botched FCC roll out of the National Lifeline Eligibility Verifier with a $200 million grant program to help states participate. What started in 1985 as a way for the FCC to provide discounted local phone service to low-income consumers was expanded in 2016 to include broadband services.
… “the National Lifeline Eligibility Verifier is intended to allow a Lifeline provider to quickly determine a person’s eligibility by searching the databases of the government assistance programs. But in a rush to say that the verifier had launched (FCC Chairman Ajit) Pai forced states to connect to the system before they were ready. As a result, a majority of states still have not connected their databases for the Supplemental Nutrition Assistance Program (SNAP), Supplemental Security Income (SSI), and other qualified government assistance programs to the verifier. This means that qualified Lifeline recipients are being mistakenly rejected from Lifeline. Given that more than 33 percent of Lifeline recipients qualify under the SNAP program, it follows that large numbers of eligible Americans are being denied benefits.”
To really bring the point home, the legislation specifically requires the FCC to coordinate with the U.S. Department of Agriculture to set up automated connections between the National Lifeline Eligibility Verifier and the National Accuracy Clearinghouse for the Supplemental Nutrition Assistance Program (SNAP).
Connecting Students and Urban Healthcare Providers
The following subsection — E-Rate Support for Wi-Fi Hotspots, Other Equipment, and Connected Devices — is aimed specifically at schools. It appropriates $5 billion for a “Connectivity Fund” that would provide support for schools and libraries (including Tribal schools and libraries) to purchase equipment such as Wi-Fi hotspots, modems, routers and other connected devices, as well as funding for advanced telecommunications and information services.
The existing E-rate program, which was established to help schools and libraries access affordable broadband service, is limited to on-campus spending. The additional funds would expand the E-Rate program to help fund broadband connectivity off-campus, as advocated for by SHLB and resisted by the Trump Administration.
The legislation does not overlook addressing the connectivity challenges for disadvantaged students in higher education. In the subsection Supporting Connectivity for Higher Education Students in Need, the bill appropriates $1 billion for an “Emergency Higher Education Connectivity Fund” that would help pay for Internet service and equipment such as laptops and modems for students at historically Black universities, Hispanic-serving institutions of higher learning, tribal colleges, and rural-serving institutions.
The last subsection of the Digital Equity portion of the bill focuses on healthcare broadband expansion. Currently, the Healthcare Connect Fund (HCF) Program provides a 65% discount on eligible broadband connectivity expenses for eligible rural health care providers (HCPs). This part of the legislation proposes expansion to establish a $2 billion “Telehealth Connectivity Fund” to include urban healthcare providers in the Healthcare Connect Fund.
Stay tuned for the next installment of this series, on transparency.
Without good information from Internet Service Providers (ISPs), the federal government is essentially shooting in the dark when it comes to determining how to best target the allocation of resources for underserved and unserved communities. Even private sector investments are less efficient because of the lack of good data about broadband availability and pricing. That’s why the second major section of the Accessible, Affordable Internet for All Act (AAIA), currently languishing in the U.S. Senate, aims to address the nebulous nature of broadband data at the Federal Communications Commission (FCC).
In this third installment of our series on the AAIA, we explore the ”Title II – Broadband Transparency” section of the Act, which requires the FCC to adopt rules to gather accurate and up-to-date information from ISPs about broadband service plan prices and subscription rates. It also requires the FCC to collect data that will allow the federal government to assess the resiliency of the nation’s broadband network in the event of a natural disaster or emergency.
Better Data is Needed
Anyone who closely follows FCC news is already familiar with the problems associated with the agency’s broadband coverage maps, which most experts agree overstate actual broadband coverage. Though recent studies indicate there may be as many as 41 million people who lack access to fixed broadband in the United States that meets minimum speed of 25/3 Megabits per second (Mbps), the FCC claims that number is closer to 18 million. It’s a big discrepancy with big dollar implications, as the coverage maps are the basis upon which agencies and states make major funding decisions.
The problem lies with the FCC’s existing Form 477, which seeks service availability data from ISPs. There’s widespread agreement that the form gleans data that is inaccurate, outdated, and misconstrued, as we detail here, with one glaring example being that it allows ISPs to claim an entire census block as being served even if only one residence in that block could have access to service. Although the Broadband Deployment Accuracy and Technological Availability (DATA) Act was signed into law in March of this year to get more granular data and improve transparency, the GOP-led FCC has yet to deliver. Immediately after the DATA Act was signed into law, outgoing FCC Chairman Ajit Pai said that because Congress didn’t appropriate any related funds, the FCC would be unable to implement the Act. The FCC has enough control over its internal funds that if Chairman Pai had wanted accurate maps, the agency would have created them.
The “Broadband Transparency” portion of the AAIA seeks to remedy the situation by appropriating $24 million to the FCC to get the job done and goes further than what is required under the DATA Act by requiring the FCC to gather information on ISP pricing, which includes “any additional taxes and fees.” It also requires the FCC to revise the rules, if necessary, to “verify the accuracy of data submitted.”
Beyond the detailed information on broadband coverage and pricing, the bill also requires the FCC to collect “data necessary to assess the resiliency of the broadband Internet access service network in the event of a natural disaster or emergency,” though it doesn’t say exactly how or what data should be gathered.
Distribution and Protection of Data
Of course, it’s one thing to require the FCC to collect this data. But the question of who has access to that data goes to the heart of transparency. In Section 2003, the bill addresses that, requiring the FCC to make the data available to federal agencies; state agencies such as broadband offices and public utility commissions; local governments; and individuals and organizations “conducting research for noncommercial purposes or public interest purposes.”
The last part of Section 2003 directs the FCC to not share the data unless “the Commission has determined that the receiving entity or individual has the capability and intent to protect any personally identifiable information contained in the data.”
Lastly, under Section 2005, the bill requires the FCC to issue rules “to promote and incentivize widespread adoption of the broadband consumer labels” the FCC established in 2016 and that broadband consumer labels should be provided in “a simple-to-understand format describing the key factors consumers need to know when considering broadband service, including: price, data allowances, speeds, and management practices.”
Finally, the bill would require the FCC to hold a series of public hearings to “assess how consumers currently evaluate [I]nternet service plans and whether existing disclosures are available, effective, and sufficient.”
Although the “Broadband Transparency” section of the bill may not get the media focus that other big ticket items in the bill will get, Matt Wood, Vice President of Policy and General Counsel for Free Press Action, sums up its significance succinctly:
While the deployment and financing strategies will understandably draw attention in an infrastructure bill, its digital equity, affordability and pricing transparency provisions are just as essential or more so for getting everyone online.
In this fourth installment of the series, we explore the part of the bill that contains the bulk of the funding. Of the $100 billion proposed in the bill, $85 billion of it can be found in the Title III – Broadband Access section.
Amending the Communications Act of 1934, Section 3101 of the bill appropriates $80 billion for “competitive bidding systems” to subsidize broadband infrastructure. That is to say, it requires the Federal Communications Commission (FCC), and states, to use “competitive bidding systems” for Internet Service Providers (ISPs) to bid on broadband deployment projects in “areas with service below 25/25 Megabits per second (Mbps), and areas with low-tier service, defined as areas with service between 25/25 and 100/100 Mbps.” The term “competitive bidding” seems to suggest a reverse auction process, though it hardly makes sense for each state to set up such a system given the logistical challenges. A legislative staffer responded to our email earlier this year saying he believed that language would allow for state programs that solicited applications from ISPs and scored them for evaluation, much like Minnesota’s Border-to-Border Broadband program operates. However, he noted that the FCC would interpret that language ultimately. More on this below.
Prioritizing Higher Upload Speeds
It’s worth noting that this part of the bill implicitly acknowledges the insufficiency of the current FCC definition of a minimum broadband speed of 25/3 Mbps. As it stands now, the FCC defines “unserved areas” as parts of the country where there is either no Internet access or broadband speeds under 25/3. This legislation raises the bar and broadens the definition of “unserved areas.” It’s a step in the right direction, as there’s widespread support among broadband advocates for increasing the FCC definition of minimum broadband speeds to at least 100/100 Mbps.
By prioritizing higher upload speeds, as this bill does, it makes all the old, outdated copper wire technology irrelevant. In other words, to get the job done as called for in this legislation would require fixed wireless, fiber optics, or recent cable DOCSIS standards. The $80 billion appropriated in this section creates two separate major sources of funding. It stipulates that 75% of the funds, or $60 billion, be dedicated for a national competitive bidding system for broadband deployment in unserved areas and low-tier service areas. The other 25%, or $20 billion, would be used for states to set up competitive bidding systems for broadband deployment in, not only unserved and low-tier service areas (service between 25/25 and 100/100 Mbps), but also for underserved anchor institutions (schools, libraries, healthcare facilities, museums, public safety offices, or public housing agencies) with speeds less than 1 gigabit per 1,000 users. The bill also allows for a state that does not have “unserved areas” or areas with “low-tier service,” for funding to be used for broadband deployment in areas with mid-tier service defined as more than 100/100 Mbps but less than 1 gigabit per second symmetrical.
In both the national and state competitive bidding systems, the legislation further requires that 20% of the funds ($12 billion for the national system and $4 billion for the state system) be used to deploy broadband that delivers 1 Gigabit per second symmetrical speeds. This strikes us as smart because as bandwidth demand continues to rise, it would be a waste of taxpayer dollars to fund broadband networks that rapidly become obsolete. Historically, WISPs may have objected to this, but since the Rural Digital Opportunity Fund (RDOF) rural auction, they seem confident in being able to deliver that capacity widely.
Funding Priority Preferences
Additionally, the bill goes on to specify funding priority preferences, the most important being projects that expand access to broadband service in areas where at least 90 percent of the population does not have access to 25/3 broadband service.
Other funding priority preferences include projects that would expand broadband access in “persistent poverty counties” and on Tribal lands. We believe it is crucial to set specific funds aside to deal with the historical refusal to invest in telecommunications infrastructure in Indian Country.
Another preference is for projects that would deploy open-access networks, which is a single high-quality network (fiber or wireless) that multiple ISPs can use to compete for customers. It’s a way of introducing competition in a market dominated by monopoly interests – a throwback to the days of dial-up when everyone used the same telephone wires to connect to the Internet and multiple ISPs competed for customers.
Not So Fast
While federal investment in broadband infrastructure is unquestionably needed (considering the failure of private ISPs to provide adequate, affordable and reliable Internet access to all) here’s where things get dicey as it relates to this major funding section of the AAIA, a part of the legislation that looked much better on paper before we saw what happened with the FCC’s recent RDOF auction that left many expert observers puzzled.
RDOF auctioned large swaths of rural areas of the U.S. that have no broadband access. Up to $16 billion was at stake though the auction will actually disperse some $9+ billion dollars because many areas were bid well below what was expected and to the point where some were bid down so far that it is almost certainly not economical to build.
In a nutshell, much of RDOF funding went to ISPs for projects where many familiar with the industry question whether they have the capacity to deliver. As our own Christopher Mitchell, who has been closely analyzing RDOF, notes: “RDOF should not give any faith that a national competitive auction is a good way to subsidize. I would not want to see an auction with so much more money after RDOF until we know the FCC can properly vet bidders. It’s probably the right amount of money (in AAIA) but it should be distributed over multiple years with local input.”
It’s not that the competitive bidding system envisioned in the legislation is inherently flawed, but in light of RDOF, it highlights the importance of ensuring the auction rules are fine-tuned, part of which should provide for local government to have a say in which ISPs do the work in their respective communities. In fact, it would make sense to revise the language in this bill to give preference for projects that are endorsed by the local governments in the project area.
Another item missing from the funding priority preferences section is one that preferences cooperatives and municipal governments looking to build locally-accountable networks. A preference for cooperatives and local governments makes sense primarily because they are directly responsible to local citizens in ways private companies often are not.
None of this should give the impression that local governments or public entities are completely overlooked in this bill. In fact, Section 3201 of the bill, would establish a $5 billion Broadband Infrastructure Financing Innovation (BIFIA) program. We’re talking about an infrastructure bank that would be administered by the National Telecommunications and Information Administration (NTIA) to provide state and local governments, public authorities, and public-private partnerships financial assistance in the form of secured loans, lines of credit, and loan guarantees.
To be eligible, the legislation requires the NTIA to determine that BIFIA funding for the project do three things: (a) foster partnerships to attract private and public investment for the project; (b) enable the project to proceed at an earlier date than the project would otherwise be able to proceed; and (c) reduce the Federal contribution for the project. Preference will be given for open access projects.
Section 3210 requires the Assistant Secretary of Commerce for Communications and Information to report to Congress one year after the bill is enacted and every two years thereafter “summarizing the financial performance of the projects that are receiving, or have received, assistance under the BIFIA program, including a recommendation as to whether the objectives of the BIFIA program are best served by [either] continuing the program under the authority of the Assistant Secretary; or establishing a Federal corporation or federally sponsored enterprise to administer the program.”
The final part of the “Title III – Broadband Access” portion of the bill, Section 3301, is unrelated to building broadband networks but would extend the E-rate program to include providing Wi-Fi access on school buses. No dedicated funds are appropriated for this as the legislation anticipates the funding would come from E-rate, which another section of the bill seeks to appropriate an additional $5 billion to expand broadband access for students off-campus as the existing E-rate program only provides for on-campus connectivity.
Our next installment in this series will look at the last three “Titles” of the bill: Title IV – Community Broadband; Title V – Broadband Infrastructure Deployment; and Title VI – Repeal of Rule and Prohibition on Use of NPRM.
the legislation also looks to build an essential bridge across the digital divide that goes beyond new infrastructure. An important part of the equation involves addressing laws and policies that have proven to be obstacles to Internet connectivity for tens of millions of Americans.
In our previous installments examining the AAIA, we covered the big-ticket items – the why, how and where the $100+ billion would be invested. This final installment in the series covers the last three major sections of the bill: Title IV – Community Broadband; Title V – Broadband Infrastructure Deployment; and Title VI – Repeal of Rule and Prohibition on Use of NPRM.
These last three sections of the AAIA do not call for any federal appropriations but instead aim to tackle several thorny policy challenges.
Removing State Barriers to Municipal Broadband Initiatives
Title IV – Community Broadband (Section 4001) of the bill is straight-forward. It would prohibit state governments from enforcing laws or regulations that prevent local governments, public-private partnerships, and cooperatives from delivering broadband service.
As it stands now, there are 19 states across the country where state legislators have passed laws designed to shield the biggest corporate Internet Service Providers (ISPs) from competition. Those laws were mostly written by lobbyists for these behemoth monopolies and duopolies, despite the fact that the Big Telcos have failed to deliver reliable, affordable and truly high-speed Internet access to large segments of the population.
In Colorado, for example, legislators in that state passed SB-152, a law that prevents local governments from investing in broadband infrastructure. Fortunately for Coloradoans, the law was amended to allow municipalities to opt-out through local referendum votes, which over 140 Colorado communities have done in the 15 years since Qwest (now CenturyLink) and Comcast successfully lobbied for passage of the anti-competition bill.
In North Carolina, home to the celebrated Greenlight Municipal Broadband Network, a 2011 state law (HB-129) effectively outlaws municipal networks in the Tarheel State by saddling local governments with a thicket of red tape, including territorial restrictions on existing networks. The building of the Greenlight Network, thankfully, predated the state law, although it continues to impede other municipalities in the state from building their own networks.
As we have written about on numerous occasions, we are strongly in favor of locally-controlled networks and the distinct advantages they provide in terms of affordability and superior customer service, as well as the benefit of keeping local funds in the community instead of dollars being siphoned away to the fill the coffers of out-of-state corporations who extract premium prices as a monopoly provider.
While we support this section of the AAIA, we also recognize the likelihood that some state governors will resent the federal government preempting them just as much as local officials are angry when states restrict local authority.
National “Dig Once” Policy
The next section of the AAIA, Title V – Broadband Infrastructure Deployment (Section 5001), however, provides something the National Governors Association favors: a “dig once” provision to better coordinate transportation and broadband infrastructure projects, while giving states flexibility and preventing any unfunded mandates.
This section of the bill would create a “Dig Once Funding Task Force” to estimate the cost of a nationwide “dig once” requirement. The Task Force, in consultation with stakeholders in rural communities and communities with limited access to broadband, would then propose funding options to implement a “dig once” requirement.
“Dig once,” which effectively eliminates the need to dig up recently-paved roads by requiring broadband conduit to be laid during road construction projects, is an easily overlooked but important consideration. It’s important because up to 90 percent of costs associated with underground deployment are often due to the excavation rather than materials, which is why forward-thinking “dig once” policies save tax dollars, to say nothing of the relief it provides commuters too often stuck in road construction traffic.
The challenge is one of administration. It is not clear who would be responsible for maintaining and leasing out the access as these highways cross many jurisdictions. ILSR and others have encouraged the federal government to focus on bottlenecks like overpasses, bridges, tunnels, railroad crossings, and the like rather than all highways. This would provide most of the benefits at a fraction of the costs and administrative burdens.
Saving a Tribal Lifeline
The final section of the AAIA, Title VI – Repeal of Rule and Prohibition on Use of NPRM (Section 6001), seeks to repeal the widely-criticized rule the FCC adopted in November 2017 that sought to “reform” Tribal Lifeline policies “to increase the availability and affordability of high-quality communications services on Tribal lands.”
While the rule was adopted under the guise of curbing abuses of Lifeline funds, outgoing FCC Chairman Ajit Pai with the support of GOP FCC commissioners, moved to eliminate Lifeline benefits in tribal areas. The program was designed for low-income households on tribal lands to receive a monthly subsidy – the $9.25 Lifeline discount plus an additional $25 – to help qualifying tribal households pay for broadband services. Several companies had committed fraud in Indian Country to maximize their gains under the program and rather than sorting that out, Chairman Pai aimed to simply shut down needed benefits in tribal areas. In February 2019, a federal appeals court temporarily blocked the move.
After the court-ruling, which allowed the Tribal Lifeline program to continue or require the FCC to re-do the rulemaking process in accordance with the court’s order, Indian Country leaders hailed the decision.
Gene DeJordy, an attorney for the Crow Creek Sioux Tribe, lauded the legal victory and said it meant “that First Americans who live in some of the most impoverished areas of the country can continue receiving essential Lifeline services that they depend on in emergencies, and for work, family care, education, and other vital day-to-day needs.”
Section 6001 looks to settle the matter once and for all by preventing the FCC from adopting a rule to cap Universal Service Funds from which the Lifeline program draws its funding, codifying the view of broadband advocates and Democratic lawmakers who rightfully criticized the rule. This change will likely lead to renewed calls to deal with “contribution reform” – how the Universal Service Fund is filled.
In our view, the AAIA represents an important step forward and should be the building block for broadband legislation in the 117th Congress. We believe Congress should provide more focused support for urban needs, which have been overlooked historically, as a considerable amount of effort has been focused on rural areas that are less politically controversial. As with so many other policy areas that involve the allocation of federal resources, the evidence indicates systemic racial imbalances even as every demographic group in the U.S. has challenges accessing high-quality Internet. White Americans have enjoyed disproportionate government support to address these barriers to access and we believe it is a simple matter of equity to craft policies and legislation that ensures no segment of the population is left behind.
This concludes our series on the AAIA. Read the full series below:
- Minnesota Legislature Considers Broadband Funding in Bipartisan Covid-19 Response
- Building a Bridge over the Digital Divide: Explaining the Affordable, Accessible Internet for All Act – Part 2
- Big Bucks for Broadband in the Balance: Explaining the Affordable, Accessible Internet for All Act – Part 4
- Washington Legislature Considering Broadband Investment Plan From Governor; House Hearing Today
- Bill to Boost Broadband in Minnesota Struggles in Legislature