The unrealized policy goal of universal internet access

2000 Democratic Party Platform on "Bridging the Digital Divide"

Democrats believe that every American - regardless of income, geography, race, or disability - should be able to reach across a computer keyboard, and reach the vast new worlds of knowledge, commerce, and communication that are available at the touch of a fingertip.

That is why Democrats fought for the e-rate to wire every classroom and library to the Internet. In the next four years, we must finish connecting the job and then go further.

We must launch a new crusade - calling on the resources of government, employers, the high-tech industry, community organizations, and unions - to move toward full Internet access in every home, for every family, all across the United States. We must make sure that no family or community is left out. We must not rest until Internet access is universal.

Bush calls for universal broadband by 2007

Reaching back to revive an idea promoted by the man he beat for the White House, President Bush urged Friday that affordable high-speed Internet access be available to all Americans by 2007, saying it was essential to the nation’s economic growth.

Bush traveled to the Southwest largely to promote home ownership but spoke briefly about Internet access in remarks reminiscent of 2000 Democratic presidential nominee Al Gore’s call for an “information superhighway” available to all Americans. 

State of the Union address, President Barack Obama, January 24, 2012

"We’ve got crumbling roads and bridges; a power grid that wastes too much energy; an incomplete high-speed broadband network that prevents a small business owner in rural America from selling her products all over the world.”

Concurrent FCC rulemakings would bar redlining for Internet service

One month after proposing a rulemaking to classify Internet protocol-based advanced telecommunications as a common carrier utility subject to universal service and non-discrimination mandates, the U.S. Federal Communications Commission will take up a similar rulemaking. The FCC’s proposed rulemaking Preventing Digital Discrimination is set for a vote at its November 15 meeting. It is primarily intended to remedy disparate impact (versus intentional) discrimination by providers that affects neighborhoods based on their demographics: income level, race, ethnicity, color, religion and national origin.

According to the FCC, the rulemaking implements section 60506 of the Infrastructure Investment and Jobs Act of 2021. It states federal policy that “insofar as technically and economically feasible— subscribers should benefit from equal access to broadband internet access service within the service area of a provider of such service.” Section 60506 defines equal access as “the equal opportunity to subscribe to an offered service that provides comparable speeds, capacities, latency, and other quality of service metrics in a given area, for comparable terms and conditions.”

Since IP telecom is currently classified as lightly regulated optional information service under Title I of the Communications Act, providers are free to deploy delivery infrastructure wherever they wish and at rates of their choosing. They naturally prefer denser, higher income neighborhoods that will produce faster return on capital investment (ROI) and where households are less price sensitive and more inclined to subscribe to higher priced services, thereby maximizing average revenue per unit (ARPU).

The proposed rulemaking gives providers an out by allowing them to defend deployment and pricing decisions based on technical and economic feasibility. They could conceivably argue that they must be more conservative in building infrastructure in lower income neighborhoods and charge more for comparable services than those offered in higher income communities in order to feasibly meet their ROI and ARPU targets. The higher rates in turn would be out of reach of some lower income households, making them less likely to sign up for services and perpetuating an unvirtuous cycle. Similarly, they could argue middle mile infrastructure isn’t adequate to serve a given community, thus making delivery infrastructure deployment technically unfeasible. It's entirely logical to segment markets and pricing in a market-based scheme under Title I regulation. Disparate market impact will be a natural outcome. Additionally, providers choosing to build fiber in higher income areas but not in lower income areas could be seen as intentional discrimination based on income, i.e. disparate treatment.

The proposed rulemaking apparently contemplates a comparison of deployment activity to help regulators establish a pattern of market conduct demonstrating discrimination. That assessment would be based on a mandate on providers annually report on their deployment activities:

We propose that each annual report must address the following components to provide a
comprehensive picture of each major deployment, maintenance, and upgrade project completed or substantially completed for each state and territory within its service area or footprint: (1) the nature of each project completed or substantially completed in the calendar year immediately preceding the submission of the report (i.e., deployment, upgrade, maintenance, or a combination thereof); (2) the number of housing units affected by the project (i.e., the number of housing units whose broadband availability or quality is positively impacted by the project) by census tract (utilizing the system presently used in the BDC); and (3) a narrative description of the project and of the areas served by the project, to allow for greater precision and clarity regarding what the project is designed to accomplish and what communities are served by the project. 

While the language of the proposed rulemaking includes providers’ more proscriptive term to describe where they have built infrastructure and offer advanced telecommunications services , i.e. “footprint,” should the FCC reclassify Internet protocol telecommunications as a utility under Title II of the Communications Act as proposed in a separate notice of proposed rulemaking issued September 28, 2023, Safeguarding and Securing the Open Internet, 47 U.S.C. 214(e)(5) affords state public utility commissions and the FCC authority to develop their own geographic parameters for the purpose of Title II’s universal service mandate requiring providers to offer service to all serviceable addresses within the service area:

(5) “Service area” defined

The term “service area” means a geographic area established by a State commission (or the Commission under paragraph (6)) for the purpose of determining universal service obligations and support mechanisms. In the case of an area served by a rural telephone company, “service area” means such company’s “study area” unless and until the Commission and the States, after taking into account recommendations of a Federal-State Joint Board instituted under section 410(c) of this title, establish a different definition of service area for such company.

Similar to the FCC’s Preventing Digital Discrimination rulemaking, reclassification of IP services under Title II would give regulators additional statutory authority to sanction discriminatory conduct under 47 U.S.C. 202, titled Discrimination and Preferences. While FCC is forbearing rate regulation in the proposed Title II reclassification rulemaking, this provision makes it unlawful for common carriers engage in “unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.” The statute allows for fines of $6,000 for each violation and $300 daily penalties for ongoing violations.

Sohn avoids mention of FCC Title II rules in recent speech

In a speech last week, Gigi Sohn, executive director of the American Association for Public Broadband, conceded that advanced telecommunications infrastructure will largely remain in the hands of private sector investors. Sohn has also questioned the notion of private sector market competition as the means to ensure advanced telecommunications infrastructure reaches all American doorstep.

It’s a logical conclusion since telecommunications like other utilities tends toward monopoly. Companies aren’t going to compete to bring multiple proprietary fiber connections to a given address because it’s economically inefficient and favors those that make the first connection. One might gain customers by bringing in a second fiber line, taking them from the provider of the first. But the return on investment rapidly diminishes with additional lines. This is not a competitive market defined by many sellers and many buyers. Many buyers, yes, but there won’t be many sellers. 

Sohn’s declaration that advanced telecommunications will remain in private hands as a service that naturally tends toward monopoly has powerful implications since market forces aren’t going to balance for buyers’ interests in access and value. Strong, meaningfully enforced regulation is needed to ensure universal and affordable access. Without it, providers are free to offer fiber connections available wherever they want at whatever price they choose.

It is thus striking that Sohn in her remarks voiced no support whatsoever for the Federal Communications Commission's (FCC) proposed readoption of regulations that would classify advanced telecommunications under Title II of the Telecommunications Act of 1934. That would make advanced telecom service a common carrier utility where reasonable requests for service – i.e., serviceable addresses – must be honored. No cherry picking and no neighborhood redlining.

It’s even more striking that Sohn didn’t refer to Title II given she promulgated the same regulations while on the staff of the FCC in 2015. The FCC in a split vote opened comment reviving the Title II regulations just two days after Sohn’s speech. As it did in 2015, however, the FCC is setting aside granting state public utility commissions authority over rates charged end users to help ensure affordable access.

California BEAD Five Year Action Plan: Substantially greater funding needed for universal FTTP.

California is unable to assure the timely construction of universal fiber to the premises (FTTP) infrastructure – estimated to cost $9.78 billion including infrastructure hardening in areas with high wildfire risk – because less than half that amount is available as federal and state subsidy funding.

That’s according to the state’s draft Five Year Action Plan required by the National Telecommunications and Information Administration’s (NTIA) Broadband Equity, Access and Deployment (BEAD) program. BEAD requires states to file “a comprehensive, high-level plan for providing reliable, affordable, high-speed internet service throughout the (state) including the estimated timeline and cost for universal service.” Additionally, the plans must include an estimated timeline and cost for universal service and planned utilization of federal, state, and local funding sources to pay for it.

“This estimate assumes no re-use of existing infrastructure (e.g., poles, conduit, manholes, etc.) in the total investment,” the draft plan prepared by the California Public Utilities Commission states. “The timeline for universal service with fiber-to-the-premises would extend beyond the BEAD funding timeline and require additional federal and state funding.”

The draft plan cautions given the Golden State’s large size, it may be challenging for BEAD-funded subgrantees to deploy infrastructure within the required five-year timeline. Additionally, “the CPUC recognizes that developing sufficient capacity may be a challenge for some potential subgrantees, including small ISPs and localities and other entities” as well as permitting challenges.

Oregon’s draft Five Year Action Plan similarly concluded that state’s BEAD funding allocation would not sufficiently subsidize universal FTTP. Like Oregon, California’s draft plan calls for the possible use of alternatives funded by the state’s $1.86 billion BEAD allocation. Those deemed “reliable” by the NTIA include hybrid fiber-coaxial cable, digital subscriber line (DSL) technology and terrestrial fixed wireless utilizing entirely licensed spectrum or using a hybrid of licensed and unlicensed spectrum.

New partnership needed to finance rapid modernization of copper to fiber as public utility

Some observers of advanced telecommunications (AT) expect the modernization of legacy copper telephone outside plant to fiber to the premises (FTTP) will take several decades along a similar timeline as copper. That duration and the relatively slow adoption of voice landline telephone service as shown here synced well. It doesn’t for FTTP. As this chart indicates, there’s a much steeper adoption curve for both landline and mobile Internet protocol-based telecommunications.


Source: Our World in Data

Demand has grown considerably during the public health restrictions of the COVID-19 pandemic that accelerated online retail, entertainment, education and government services, virtual knowledge work and telemedicine.

That raises the question of how FTTP can be built rapidly enough to accommodate burgeoning demand and who should build what is increasingly being seen as an essential utility versus a market commodity of “broadband” bandwidth sold as often pricy packages of video, voice and data services in discrete neighborhood “footprints.”

To shift to a utility model, the U.S. will have to adopt a common carrier framework of FTTP delivered advanced telecommunications infrastructure to replace the current optional market service sold where it produces the fastest return on investment at the lowest risk. That has resulted in a highly fragmented patchwork of access and affordability.

Treating FTTP as common carrier telecommunications utility infrastructure raises the related question what financing mechanism can finance its needed rapid construction. Federal and state grant programs that incrementally dole out funds for discrete, limited builds won’t be sufficient and perpetuate the fragmented “Swiss cheese” patchwork of FTTP deployment. That’s inconsistent with a common carrier utility model in which reasonable customer requests for connectivity must be accepted – universal service -- with service quality and reliability standards and neighborhood discrimination applied the current market-based model prohibited.

Investor owned providers can’t look to their shareholders to bear the cost, particularly legacy telephone and cable companies paying high stock dividends and carrying significant debt on their balance sheets. They would require a massive infusion of outside investment that isn’t likely since private equity investors like their own shareholders will only be inclined to finance limited FTTP builds where the return on investment is greatest -- and not to all serviceable addresses under a common carrier utility model.

The solution points to public sector ownership and finance, partnered with the private sector in a competitive contracting process such as those used for public works projects to design, build, and operate the infrastructure. The public entities should be regional in scope, like that of the regional bell operating companies (RBOCs) created after the breakup of AT&T in the early 1980s.