California legislation imposing universal service mandate on commercial providers founders

Two California bills that would establish a statutory requirement on commercial providers of advanced telecommunications to provide service to all addresses in their service areas have foundered. AB 1714 would effectively do so by defining such providers as common carrier public utilities. The bill has not been set for hearing since it was introduced in February.

The second measure, AB 41, would have required providers issued franchises under the state’s video franchise law by the California Public Utilities Commission to make service available to all residences in its service area within five years following renewal of a franchise. That requirement was deleted from the bill in a July 13 amendment. The bill includes a legislative finding that “Thousands of California households still lack access to video or broadband service, including households that are within the existing service territories of state video franchise holders.”

Affordable Connectivity Fund uncertainty reveals key breakdown point in market-based advanced telecom policy

WASHINGTON, June 20, 2023 – Experts are pushing Congress to extend the funding available to the Affordable Connectivity Program or else it will hamper efforts to build out infrastructure in other parts of the country.

The essence of the argument is that the $14.2-billion ACP, which provides a $30- and $75-per month subsidies to low-income Americans, is helping internet service providers with revenues used to build more infrastructure in underserved areas. But experts are warning that the ACP – which currently enrolls about 18.5 out of 48 million eligible Americans – could run out of money as soon as early 2024, which observers have said could affect private investment in broadband deployment.

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“This is the first time we’re seeing these deployment grants make a specific requirement for recipients to actually include and participate in an affordability program,” said Kathryn. “They are trying to stabilize revenue for internet service providers who are connecting areas that might not offer a high return on investment.”

This funding from the ACP would provide the groundwork for a decade-long investment in internet infrastructure, according to Jonathan Cannon, technology policy counsel at think tank R Street Institute.

https://broadbandbreakfast.com/2023/06/lack-of-affordable-connectivity-fund-money-could-hobble-broadband-deployment-experts/

This is a critical point of breakdown in the current market-based policy for modernizing legacy metallic telecom infrastructure such as copper to support analog telephone service to fiber for advanced telecom services.

Legacy telephone service has high cost area and low income customer subsidies. But they were properly paired with a universal service/non discrimination mandate and state utility rate regulation under Title II of the Communications Act. By contrast, advanced telecom is not subject to Title II and instead is lightly regulated as an optional information service under Title I of the statute. 

GAO: U.S. lacks national strategy for deployment of advanced telecommunications infrastructure, calls for presidential leadership

In a statement this week, the U.S. General Accountability Office (GAO) underscored a report it issued in May 2022 finding the United States lacks a national strategy to guide the deployment of advanced telecommunications infrastructure. Instead, the report found, there are numerous, uncoordinated subsidy programs administered by multiple federal agencies.

The GAO statement once again called for presidential leadership. The Executive Office of the President should develop and implement a unified national strategy, noting as of May 2023, the recommendation has not been implemented. “[A] national strategy could guide the efforts of states and localities implementing programs in coordination with the federal government,” the GAO said. “The roles of states have become even more important as they receive and then distribute funds from new federal broadband programs administered by NTIA and the Department of the Treasury,” it added. The NTIA’s Broadband Equity, Access and Deployment (BEAD) program has charged states with developing strategies to ensure universal access as part of their required Five Year Action Plans due this year.

However, $42.5 billion BEAD allocates to states to subsidize up to 75 percent of the cost of constructing advanced telecommunications infrastructure in areas where it is lacking could run into complications. That’s because eligibility is based on highly granular areas – that could be as small as a few premises -- that might be ineligible for BEAD subsidies because those locations received subsidization from one of many fragmented and overlapping federal programs. Not to mention various state subsidy programs.

We identified at least 133 funding programs—administered across 15 agencies—that can be used to support broadband access, including support for planning and deploying infrastructure, making service affordable, providing devices, and building digital skills. Some of these programs support broadband as their main purpose or one possible purpose, and others can be used for multiple purposes related to broadband. Eligible recipients for these programs range widely and include: internet providers; other private sector entities; nonprofits; tribal, state, and local governments; education agencies; and healthcare providers. Through these programs, federal agencies invested at least $44 billion in broadband-support activities from fiscal years 2015–2020, according to our analysis of agencies’ data.

Given the current lack of an overarching, coordinated strategy ensure universal service, “most of the agency officials and more than half of the nonfederal stakeholders we interviewed said a new national strategy would be helpful,” the GAO stated.

Lacking public policy establishing universal service, U.S. will continue to struggle and spin its wheels to achieve it.

As the U.S. General Accountability Office report noted in a report issued in May 2022, the United States lacks a national strategy to guide the deployment of advanced telecommunications infrastructure. Instead, the report found, there are numerous, uncoordinated subsidy programs administered by multiple federal agencies.

The Biden administration has stated a policy principle of universal service: “Internet for All.” That was emphasized in March by Commerce Secretary Gina Raimondo at an interview with Yahoo Finance. "The reality is, if we're going to connect every American, including the tens of millions of Americans who now don't have the internet, we're going to have to lay fiber all across this country,” Raimondo said.

But the administration’s context here is yet another subsidy program – the Broadband Equity, Access, and Deployment Program authorized by the 2021 Infrastructure Investment and Jobs Act (IIJA) – and not affirmative public policy ensuring fiber reaches most every American doorstep as Raimondo described the mission.

Like the 1996 Telecom Act that “encourage(s) the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans … in a manner consistent with the public interest, convenience, and necessity” the IIJA does not create universal access as public policy. It merely states that it’s “essential to full participation in modern life in the United States.”

Nor has public policy that has primarily relied on investor-owned companies to deploy fiber to the premise (FTTP) infrastructure been “consistent with the public interest” since investor-owned providers must naturally place the interests of their owners ahead of the public interest of ubiquitous, affordable connectivity. That’s arguably inconsistent with the public interest. (Emphasis added)

Until affirmative public policy that actually has the means to expeditiously attain universal, affordable access is put into federal statute or administrative law based on a unifying and action-based policy principle, the nation that invented the internet will continue to struggle and spin its wheels to achieve this goal.

States will likely need additional federal funding to attain universal service under BEAD Five-Year Action Plans

The National Telecommunications and Information Administration’s (NTIA) Broadband Equity, Access and Deployment (BEAD) program – part of the Infrastructure Investment and Jobs Act (IIJA) – requires states that received planning grants in 2022 to develop “Five-Year Action Plans” in 2023 that will inform their requests for $42.5 billion in grants to subsidize advanced telecommunications infrastructure.

The plans must include “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 planned utilization of federal, state, and local funding sources to pay for it.

As with any infrastructure, it won’t come cheap. Hence the $42.5 billion BEAD allocates to states to subsidize construction costs. But BEAD also requires states to "rigorously explore ways to cover a project’s cost with contributions outside of the BEAD program funding." In developing their Five-Year Action Plans, states will have to determine to what extent they will have to cover shortfalls by, for example, issuing long term bonds to finance construction. 

And whether they will legislatively mandate universal service, requiring existing investor owned providers honor connectivity requests at serviceable addresses as proposed California legislation would do by deeming Internet service a public utility and establishing state policy of digital equity as a right of access. Or to fund public or consumer utility cooperative owned fiber to the premise (FTTP) infrastructure as a means of ensuring digital inclusion and equity as required by BEAD given challenges faced by investor owned providers that frequently scale back deployment plans to accommodate their business model constraints.

It's likely states could conclude that in order to attain universal service, they will need additional federal funding. That is evidently contemplated in BEAD. As part of their Five-Year Action Plans, states must detail technical assistance and “additional capacity needed for successful implementation of the BEAD Program.”

States face major challenge to develop plans for universal FTTP access

Given America’s highly fragmented, piecemeal deployment of fiber to the premises (FTTP) over the past few decades that continues in the current one, states are confronting a significant challenge to develop plans to ensure it reaches most every doorstep.

Last year, all states and territories received planning grants under the National Telecommunications and Information Administration’s (NTIA) Broadband Equity, Access and Deployment (BEAD) program – part of the Infrastructure Investment and Jobs Act (IIJA).

That funding requires states to develop Five-Year Action Plans in 2023 that will inform their requests for $42.5 billion in grants to subsidize advanced telecommunications infrastructure, with priority afforded to FTTP. The plans must include “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.” 

This comes amid a rapid increase in FTTP deployment that some have likened to a land grab in order to obtain first mover market advantage. Conditions are ripe. FTTP is a virtually unregulated natural monopoly with strong demand, present and future. That makes it attractive to investor-owned companies where those factors combined with sufficiently high development density and household incomes support the business case. Private equity has even gotten in on gold rush, hoping to flip fiber assets in the future to large providers looking to expand their footprints without investing their own capital by rolling up smaller players.

Local governments that have for years heard complaints from residents and businesses about poor Internet access that grew louder during the public health restrictions of the pandemic that turned homes into places to work and study are handing over their federal pandemic relief dollars to incumbent providers to build FTTP.

Some local governments are building their own. Others have banded together to form regional telecommunications authorities to deploy FTTP where the business case is weak for investor owned providers. In rural areas, electric utility cooperatives are getting into the telecommunications business with FTTP.

Since the U.S. regards Internet protocol (IP) telecommunications as an information service and not a utility (that could change in California under proposed legislation), none of these providers are required to extend FTTP to any home or business that requests service. The result is disparate deployment in discrete areas, leaving a lot of holes in the FTTP Swiss cheese.

Consequently, states face significant challenges to attain a goal of universal FTTP access and developing a meaningful plan that closes the gaps with insufficient market or regulatory incentive for the various aforementioned providers to fill them amid a tight labor market for FTTP technicians and installers.

The $42.5 billion in grants to subsidize advanced telecommunications infrastructure appropriated in the IIJA is intended to help achieve that under the NTIA’s Internet for All initiative, allowing states to contract with providers to build infrastructure and cover up to 75 percent of the capital cost of deployment.

However, as currently structured under the IIJA, those subsidies aren’t targeted to underwriting FTTP. Much of it could end up being requested by cable companies to incrementally edge out their existing coax footprints since the NTIA rules on BEAD funding allow awards for projects of a small number of serviceable addresses and even a single address. Moreover, the NTIA’s BEAD eligibility requirements bar subsidization where a mobile wireless provider using licensed spectrum also advertises fixed premise service meeting minimum throughput standards.

States could designate ISPs as public utilities as strategy to attain universal service

The National Telecommunications and Information Administration’s (NTIA) Broadband Equity, Access and Deployment (BEAD) program guidance spelled out in its Notice of Funding Opportunity (NOFO) requires states as part of their Five Year Action Plans to develop “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.”

A potential component of these plans could be legislation deeming companies providing advanced telecommunications as common carrier public utilities and thus mandated to offer universal service to all of a state’s serviceable addresses. These are defined in the BEAD NOFO as “a business or residential location in the United States at which fixed broadband Internet access service is, or can be, installed.”

California legislation introduced this month (AB 1714) would designate these providers as common carrier public utilities. Other states could take a similar route in developing the universal service component of their Five Year Plans due to the NTIA this year.

Voice telephone service is regulated as a common carrier public utility under Title II of the Communications Act of 1934. Per the law, "It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefor..." It also bars them from “unjust or unreasonable discrimination” in “charges, practices, classifications, regulations, facilities, or services.”

The federal government has declined to regulate providers of advanced telecommunications as such, instead opting to regulate them as “information services” under Title I of the statute. Since information services are not classified as common carrier utilities, they are not subject to the universal service and non-discrimination mandates. That has led to substantial problems with access and affordability with advanced telecommunications that BEAD aims to remedy.

Hope is not a strategy: America's aspirational and unrealistic advanced telecom infrastructure policy cannot attain universal access

It's been said that hope is not a strategy. The United States doesn't truly have a strategy to attain universal access to advanced telecommunications service for all Americans because its telecom policy of the past 25 years is largely aspirational. It's based on the hope that:

1. By having the telephone companies report annually on the broadband bandwidth they sell in a given census block, unspecified actions can be taken to increase competition notwithstanding that telecom infrastructure like other utilities is a natural monopoly.
2. Increased competition in turn will encourage investment in areas where the return on infrastructure is riskier, ensuring relative parity of access to advanced telecommunications among urban and less urbanized areas of the nation.
3. By creating "broadband maps" (based on #1) delineating levels of throughput offered by various wireless and landline technologies, the maps will guide early and efficient construction of advanced telecommunications infrastructure by showing where it’s needed in order to ensure universal access to advanced telecommunications.
4. The maps can be updated in 2022 to show where throughput is the lowest to guide federal grant subsidies to states to cover 75 percent of the cost of building advanced telecommunications distribution infrastructure at least comparable to that of existing cable TV providers.

Infrastructure bill mandates FCC report to Congress on universal service

The Infrastructure Investment and Jobs Act (IIJA) requires the U.S. Federal Communications Commission to deliver a report to Congress on the FCC’s options for improving its effectiveness in achieving the universal service goals. The report, due by August 15, “will focus on examining options and making recommendations for Commission and Congressional actions toward achieving those goals,” according to a proceeding the FCC opened to gather public comment.

The IIJA mandated report also requires the FCC to determine whether expanding current universal goals is in the public interest. The goals are:

• Preserve and advance universal availability of voice service;
• Ensure universal availability of modern networks capable of providing voice and broadband service to homes, businesses, and community anchor institutions;
• Ensure universal availability of modern networks capable of providing advanced mobile voice and broadband service;
• Ensure that rates for broadband services and rates for voice services are reasonably comparable in all regions of the nation; and
• Minimize the universal service contribution burden on consumers and businesses.

The FCC defines universal service as “the principle that all Americans should have access to communications services,” noting the Telecommunications Act of 1996 expanded that to include Internet protocol-based advanced telecommunications services “for all consumers at just, reasonable and affordable rates.” The 1996 statute states “access to advanced telecommunications and information services should be provided in all regions of the Nation.” Advanced telecommunications capability is defined as “without regard to any transmission media or technology, as high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.”

The 1996 Act also employs a dynamic definition of universal service as “an evolving level of telecommunications services that the Commission shall establish periodically … taking into account advances in telecommunications and information technologies and services.”

FCC set to move into key role on universal advanced telecommunications service

Within one month following the enactment of the Infrastructure Investment and Jobs Act President Biden will sign into law next week, the Federal Communications Commission must commence a proceeding to determine how the FCC should achieve universal advanced telecommunications service. The measure mandates the FCC report to Congress by next August options for “improving its effectiveness in achieving the universal service goals” taking into account the bill and other legislation addressing the goal of universal service. Universal service was attained for voice telephone service in the previous century. The report gives the FCC authority to make “recommendations for Congress on further actions the Commission and Congress could take to improve the ability of the Commission to achieve” universal service.

Notably, the infrastructure bill emphasizes the FCC report “may not in any way reduce the congressional mandate to achieve the universal service goals.” But it gives the FCC an opportunity to weigh in as to whether it “believes such an expansion is in the public interest.”

The infrastructure bill’s enactment comes as the administration looks to put its mark on the FCC by nominating FCC member Jessica Rosenworcel to serve as chair and Gigi Sohn as a member of the panel. In an executive order issued in July, President Biden called on the FCC to reinstate Obama administration regulations repealed during the Trump administration that would mandate universal service by classifying IP delivered services as common carrier telecommunications under Title II of the Communications Act of 1934.

Response to #USTelecom re pandemic and advanced telecom infra

Broadband & COVID-19: #TogetherApart: Twenty million Americans do not have an on-ramp to high-speed internet. The capacity exists for the government and broadband companies to relegate this fact to the history books in relatively short order. A surge now in federal funds to connect the final frontier — primarily unserved areas that are cost-prohibitive for businesses to serve on their own — can get us to the long-distant mountaintop of universal connectivity. Now is the time for our nation’s policymakers to think and act boldly and decisively about achieving — permanently — truly universal service for all Americans.

But that surge in federal funds should NOT go directly into the coffers of investor owned telephone and cable companies but instead create a “public option” of fiber to the premise #FTTP infrastructure. These companies should be limited to designing, building, maintaining and offering services over it -- but not ownership. The past 25 years have shown universal connectivity – a public interest – conflicts with the private interest of investors to limit capital expenditures on infrastructure. That’s what created the service gap to which the writer refers. Members of USTelecom also oppose regulating Internet connectivity as a common carrier utility under Title II of the Communications Act because doing so would mandate universal service and prohibit neighborhood redlining.

In the meantime, additional funds should be made available immediately to quickly create a nationwide broadband map that can identify with pinpoint accuracy every last unserved home and business in America. This will allow for the expedited and highly targeted deployment of resources to connect them.

Utter rubbish. USTelecom members know exactly where unserved homes and businesses are. They deliberately redlined neighborhoods they deemed unable to provide the rapid return on their infrastructure investments their investors demand. Calling for better mapping is a disingenuous delaying tactic intended to protect their service territory monpolies. It's time to place this propaganda in the trash heap where it belongs.