States struggle to devise solid, actionable plans to achieve universal service

“Maine's existing internet infrastructure is largely a patchwork of individual private networks. The infrastructure behind these networks was generally not created to support the goal of universal broadband access throughout the state. While public and private investments over the last decade have added essential infrastructure to support this goal, the job is not done, and too many areas of Maine remain unserved.”

That excerpt from Maine’s Five Year Action Plan required by the National Telecommunications and Information Administration’s (NTIA) Broadband Equity, Access and Deployment (BEAD) program describes every American state and territory, encapsulating the fundamental problem of the nation’s highly fragmented advanced telecommunications infrastructure that falls short of universal service, leaving many without quality, affordable connectivity.

Consistent with current federal policy of subsidiarity leaving it to the states to establish universal service like that for landline telephone service, BEAD requires states to devise plans to provide universal service reaching every doorstep. The Five Year Action Plans must include timelines, cost estimates and funding sources to bring it about, with a subsidy funding preference for fiber to the premises (FTTP) delivery infrastructure.

The NTIA characterizes the $43 billion in BEAD subsidies largely targeted to exurban and rural areas deemed unworthy of investment by investor owned providers as a once in a generation initiative. “We are writing the next chapter of the great American infrastructure story,” said BEAD Program Director Evan Feinman. “But this is going to require a true whole-of-society effort” involving federal and state officials, local governments, providers, co-operatives, and communities.

However, a review of BEAD Five Year Action Plans filed with the NTIA as of this week shows states are struggling to devise solid, actionable plans to achieve universal service. Most are largely aspirational. Several note that BEAD subsidies alone cannot fully fund universal service along with an alphabet soup of other federal and state grant programs put in place over the past few decades. That’s implicit in BEAD program guidance that require the plans to include federal, state, and local funding sources to attain it. But nearly all the plans don’t identify state or other local funding sources to address the deficit in federal funding. Others point to the continued use of FTTP stopgaps such as fixed wireless and satellite service along with the expectation investor owned providers will build out their infrastructures.

The state plans generally point to a prolongation of the historical pattern of incremental construction that will leave universal service out of reach for the foreseeable despite the state plans stating advanced telecommunications infrastructure will reach all residents by the end of the decade. One off grant funding has encouraged the incrementalism since it only nibbles away at the infrastructure deficits rather than eliminating them, producing what analyst Karl Bode aptly describes as “half built,” incomplete infrastructure.

A single, long term, low interest federal loan program for lower cost government owned and consumer utility cooperative-owed FTTP infrastructure is a better option than the current confusing mix of grant programs. It would have program integrity built in via loan underwriting standards and collateralized network assets to protect public dollars – dollars that would go further with these lower cost deployers and attain universal service more rapidly since they don’t bear the burden of generating profits and dividends for investors as well as income taxes.

In sum, the state Five Year Plans reflect no true “uni” in the BEAD universal service initiative: one single guiding program policy principle and sufficient dedication of resources to close the infrastructure gaps and bring about universal service.

North Carolina homes in "digital distress" reliant on mobile access

The map below shows the percentage of homes that rely on mobile devices only or have no devices and either have no internet access or cellular data only.

 

 Source: STATE OF NORTH CAROLINA BEAD Program Five-Year Plan.

FCC’s proposed readoption of Title II rules won’t likely increase access and affordability

The Federal Communications Commission’s proposed rulemaking that would once again reclassify internet services as common carrier telecommunications utilities under Title II of the Communications Act from their current classification as information services under Title I of the statute in theory isn’t likely to have any meaningful impact on access and affordability.

President Joe Biden encouraged the FCC to adopt the rulemaking in a July 9, 2021 executive order, Promoting Competition in the American Economy. But the intent of the order to promote competition is at odds with the underlying rationale of Title II regulation that was used for decades to regulate voice telephone service. That regulatory scheme is properly predicated on the notion that telecommunications like other utilities functions as a natural terminating monopoly. The high cost of building utility infrastructure naturally deters potential competitors from entry – a point made by FCC Chairwoman Jessica Rosenworcel in a speech announcing the proposed rulemaking.

Utility infrastructure also affords incumbents first mover advantage, making it difficult for would be competitors to dislodge them. Investor owned utilities recognize the value there since connecting a customer premise essentially means owning the customer for the long term and potentially selling out to a consolidator for a big future payday. That incentive is now drawing in private equity capital into fiber to the premise (FTTP) deployment in areas where FTTP is spotty or nonexistent.

Since these microeconomic conditions cannot assure universal and affordable access, Title II does so by making telecommunications a common carrier utility, barring discrimination, and requiring reasonable requests for service be honored. It also allows for rate regulation. Authority for the latter was not included when the FCC last reclassified internet as a utility in a 2015 rulemaking and won’t in the forthcoming one, according to Rosenworcel. But the non-discrimination/universal service mandate – that Public Knowledge's Harold Feld has termed "the quintessential common-carrier obligation" – was.

Should it also reappear in the new proposed rulemaking expected to largely mirror the 2015 rulemaking, it’s questionable whether it will be meaningfully enforced. The FCC didn’t enforce that provision of the 2015 rulemaking, effectively letting service providers off the hook in response to a consumer complaint that a request for service wasn’t honored. All providers have to do is claim the customer location isn’t in its current footprint and the complaint is summarily dismissed. Similarly, providers might argue a request for service outside of its existing footprint is unreasonable since the necessary delivery infrastructure doesn’t exist, rendering the universal service mandate moot and allowing continued neighborhood redlining.

How open access model disrupts, offers potential to more rapidly scale FTTP infrastructure.

Open access infrastructure, wherein service providers lease the access layer of fiber to the premises (FTTP) networks to gain access to subscribers, offers substantial potential to alter the economics of deploying FTTP. FTTP deployment has lagged in the United States – currently passing less than half of all homes – because the business case for its deployment is based on recovering capital investment in a short term time horizon of 5-7 years from residential subscription fees. These deployers sell both access to its proprietary delivery infrastructure and bundled services delivered over a vertically integrated offering of web, email, as well as video channels and voice over internet protocol (VOIP).

Their business case analysis considers internal rate of return standards, the number of homes likely to purchase known as “take rate,” and projected average revenue per household unit or ARPU. That calculus has historically favored household density and income with the former carrying the most weight since the cost of deployment would be spread across more homes.

Open access infrastructure changes this revenue structure. Instead of solely relying on end user revenues, it derives some from leases to service providers. In the case of Utah’s UTOPIA Fiber open access network, fully 70 percent comes from service providers and the balance from end users. Open access infrastructure must attain significant scale to reach a lot of end users in order to offer an attractive market to service providers to lease access to the network.

The open access model also lengthens the investment time horizon allowing deployers to attract more patient capital that doesn’t need to hit ROI over the short term. It’s in it for the long game. The demand for FTTP is there – owing in large part to the fact that more than half of U.S. households lack access to it - and will continue to be. It’s also a long term asset with a life span of 30 to 50 years. And it’s sticky, affording deployers first mover advantage. Whoever deploys first is likely to own that end user premise customer for decades.

As one of the first open access networks formed in the early 2000s, UTOPIA Fiber has achieved the scale necessary to make the model work, serving 20 Utah municipalities that collectively own the network. The financial appeal of the open access model has also attracted private players including SiFi Networks, which according to its website is now in 11 American cities. More recently, AT&T is getting in on the open access action, forming a joint venture with BlackRock to deploy open access FTTP outside of AT&T’s existing service area.

Northern California could potentially host the nation’s largest regional open access network in terms of scale and geography, serving 40 member counties of the Rural County Representatives of California (RCRC) with the RCRC’s nascent Golden State Connect Authority, formed in 2021 as a joint powers authority. There, the open access model could provide FTTP in less densely populated areas passed over by the large, investor owned telephone and cable companies under the traditional closed access bundled services business model. Many households there are forced to rely on substandard, expensive wireless services.

Will Gigapower truly operate as open access network?

A cynical view of the investor owned open access fiber to the premises (FTTP) Gigapower build – AT&T’s joint venture with BlackRock – might hold that AT&T will end up as the sole service layer provider. AT&T will initially serve as the “anchor tenant” ISP riding on Gigapower glass.

That view is justified by the history of the unbundling of AT&T’s copper distribution network assets as well as those of other telephone companies mandated by the 1996 Telecommunications Act. The Act required the telcos to providing access to ISPs to compete with its own services. Since these competitive local exchange carriers (CLECs) were all selling the same thing – dialup access and later DSL over platforms like AOL, CompuServe and Netscape – it was difficult to for the CLECs to differentiate their service offerings from those of other ISPs and the incumbent telcos. That prompted a race to the bottom price war that AT&T and other telcos with their deep coffers would ultimately win, being able to hold out for the duration. In addition, a 2006 U.S. Court of Appeals decision held incumbent telcos were not obliged to provide CLECs access to fiber to the premises (FTTP) that was just beginning to replace the legacy copper in limited builds.

However, if AT&T were to monopolize Gigapower as the sole and not just the anchor tenant, the business model wouldn’t benefit from lease revenue paid by other ISPs leasing access to network assets Gigapower expects to defray capital and operating costs. But a cynical take there might be Gigapower will operate as a truly open access network for only the first seven to 10 years to help it finance capex and opex costs for fiber delivery infrastructure outside of its current service area that it couldn’t otherwise justify spending on its own. After which it would become exclusively AT&T’s with the Gigapower terminating and non renewing completing ISP service provider contracts.

Open access FTTP offers potential route to having edge providers defray FTTP infrastructure costs

AT&T’s joint venture with BlackRock to build and operate fiber to the premise delivery infrastructure as an open access network has implications for an issue related to how infrastructure deployment and operating costs are financed. Particularly, how revenues from internet service providers can defray the cost of planning, constructing, and operating it.

Some telecom industry trade groups have argued “big tech” edge providers such as Google, Microsoft, Amazon, and Meta should contribute to these expenses since their businesses benefit from the FTTP infrastructure providing them access to subscribers of their services and delivery platforms. The argument has been raised in a statutorily mandated U.S. Federal Communications Commission inquiry on universal service and the future of the Universal Service Fund as well as before EU regulators.

In an open access network, service providers pay to lease access from the network operator. Service provider leases could potentially offer investor owned telephone companies an indirect route to get edge providers to help defray them via contracts with ISPs offering services on open access networks. Edge providers would pay the ISPs to bundle their offerings and offer them to end users. Such an arrangement would naturally favor the scale of larger networks such as AT&T’s joint venture Gigapower hopes to attain.

Bringing ISP lease revenue to the table alters the traditional business case analysis for deploying FTTP since it provides owners/operators a revenue source independent of monthly end user or subscriber fees. Traditionally, business case analyses focus on household take rate and ARPU revenue estimates only. That has left many households effectively redlined for FTTP because a viable business case often cannot be made based solely on subscriber revenues.

Service provider lease revenue can flip the analysis, instead constituting most of the network revenues instead of end user subscriptions. For example, the publicly owned open access network UTOPIA Fiber gets 70 percent of revenues from these leases, according to a preliminary bond offering issued April 14, 2022 for $30 million in tax exempt telecommunications revenue bonds. The balance is from end user service contract fees.

More patient capital meets burgeoning demand for fiber

A shift is underway in capital investment in fiber to the premises (FTTP) advanced telecommunications infrastructure. In the United States, FTTP investment has lagged for decades due to the capital investment limitations of investor owned telephone companies. They are constrained by overleveraged balance sheets and investor expectations of traditionally high shareholder dividends that necessitate rapid returns on any capital investment. Those limitations became apparent in the late 2000s when Verizon faced a shareholder revolt, forcing it to scale back plans to modernize its legacy copper outside plant to FTTP. It later moved into fixed wireless that offered lower capital costs. Infrastructure investment is a long term proposition that requires patient capital not found in these companies.

Now AT&T is attempting a workaround to access more patient capital with its Gigapower joint venture with investment firm BlackRock to invest in open access FTTP delivery infrastructure outside of its service area. That patient capital includes state and local pension funds, sovereign wealth funds, and family endowments, Adam Walz, told a panel presentation this week by Broadband Breakfast. Walz is managing director of BlackRock’s Global Infrastructure Fund focused on investments in digital infrastructure opportunities across fiber networks, data centers, and wireless infrastructure.

Notably, other builders of open access FTTP also rely on patient capital including UTOPIA Fiber, owned and financially backed by a 20 Utah municipalities and privately owned SiFi Networks, funded by European pension fund APG. However, Gigapower CEO and retired AT&T executive Bill Hogg, said these players have “nowhere near the scale we will have,” claiming Gigapower will be “much larger than any other provider in the space. The scale at which we are going to operate will be a differentiator in the U.S. marketplace.”

But patient capital doesn’t mean it isn’t concerned about maximizing returns. All these players are targeting more densely developed areas most likely to produce strong ROI and ARPU, capitalizing on the strong demand for FTTP delivered services. Had U.S. telecom policymakers made more erudite decisions decades ago, fiber would have reached nearly all American doorsteps by 2010 at the latest instead of the estimated 40 percent currently. That gives Gigapower lots of runway as well as first mover advantage: first with fiber owns the location for the long term. “We’ve found plenty of attractive locations to build fiber where there’s no fiber today,” Hogg said, pointing to Las Vegas (Google Fiber is looking at that metro as it enters Nevada) and locales in Florida and Arizona. 

The concentration on densely developed areas will require patient capital investment by governments and consumer utility cooperatives to serve less developed areas, particularly those at the exurban edges of metro areas that have seen in migration by knowledge workers as knowledge work decentralizes out of urban cores.

U.S. should create authority to administer long term, low interest loans for open access advanced telecom infrastructure

Concerns have been raised regarding access to grant funds for advanced telecommunications infrastructure appropriated in the Infrastructure Investment and Jobs Act (IIJA) specifically the National Telecommunications and Information Administration’s (NTIA) Broadband Equity, Access and Deployment (BEAD) program that administers the funds. To ensure program integrity – that grant funds subsidize the construction of infrastructure – the NTIA requires a 25 percent match as well as a bank letter of credit that would allow the NTIA to claw back monies not used for that purpose.

In 2022, the U.S. Government Accountability Office identified a patchwork of more than 100 federal programs administered by 15 agencies that could be used to expand access. The GAO recommended the NTIA identify key statutory limitations to program alignment and develop legislative proposals as appropriate. The NTIA agreed with its recommendations, the GAO reported, and agreed to report to Congress by May 31, 2026 on barriers and statutory limitations that limit broadband program alignment and offer legislative proposals to address them.

Earlier this year in prepared Congressional testimony, the GAO called for national strategy needed to coordinate fragmented, overlapping federal programs, noting fragmentation and overlap can lead to the risk of duplicative support. Three months before, the Federal Communications Commission reported to Congress the Broadband Interagency Coordination Act, which directed the FCC, the National Telecommunications and Information Administration (NTIA) and U.S. Department of Agriculture (USDA) to take a whole-of-government approach to advanced telecommunications infrastructure deployment. The FCC reported an interagency agreement among them “significantly facilitated efficient use of federal funds” and “established a consistent, robust channel for communications among the agencies concerning their respective funding programs.”

The NTIA is finding and will continue to find administering the BEAD program to be challenging. Questions over the accuracy of “broadband maps” created by the FCC to map marketed bandwidth to determine funding eligibility threaten to tie up timely disbursement of funds to the states in addition to the aforementioned concerns over the letter of credit requirement. While opponents see the letter of credit requirement as a way of favoring large investor-owned telephone and cable companies and locking out nonprofit and public sector applicants, it builds in a measure of program integrity to protect public dollars from misappropriation. The downside is by favoring the large investor incumbents along with the eligibility requirements based on their current Swiss cheese service offerings, it will promote continued limited, discrete infrastructure builds (they can be as small as one address under NTIA’s program guidance) that conflict with the expressed intent of the guidance that states develop plans for universal service for all their residents.

Here's what NTIA should recommend to Congress -- and not wait until May 2026 but do so ASAP:

• All existing federal grant programs be eliminated and uncommitted funds placed under a federal 501(c)(1) nonprofit Advanced Telecommunications Authority to administer low interest loans with terms of 30 or more years to state and local governments and 501(c)(12) consumer telecom cooperatives to construct universally available, open access fiber to the premises transmission and delivery infrastructure as well as middle mile transmission infrastructure.
• State and local governments and 501(c)(12) consumer telecom cooperatives would be authorized to issue transparent and fair competitive requests for proposals and qualifications for entities to design, build and operate the infrastructure similar to road and highway projects.
• Since the funds would be structured as loans, the authority should be authorized to develop program rules to mitigate the risk of loan defaults and ensure fully (and not partially) built infrastructure, extending loan funds via regional offices as project milestones are complete and meet construction and quality of service standards.
• States would be authorized to create interstate regional advanced telecommunications infrastructure authorities to enhance economies of scale and access to labor and materials and to ensure timely construction of essential middle mile transmission infrastructure.
• States would be encouraged to expedite permitting approvals and access to rights to way for both new aerial poles and underground infrastructure.
• The publicly owned infrastructure built by the regional authorities would be authorized to charge only nominal access fees to end users. They would be authorized to assess access fees on service and content providers offering services on the infrastructure to defray operational and maintenance costs.

Critics of these measures would likely argue they cannot attain universal, affordable access. But the current market and bandwidth (versus infrastructure)-based strategies clearly cannot in a timely manner. Market-based competition has a role. But in order to serve the public interest, government must take the lead to harness market forces and ensure public funds are used for public purposes.