Access to advanced telecom isn't a human right. But it is essential utility infrastructure.

The White House on Monday announced more than $42 billion in new federal funding to expand high-speed internet access nationwide and ensure even the most rural communities can reap the economic benefits of the digital age.

In an interview with TIME after the plan was unveiled, Commerce Secretary Gina Raimondo, whose department will oversee the new funding, said that high-speed internet is no longer a luxury but a “basic human right” as modern life becomes more digitized. Her comment echoes a sentiment from President Joe Biden, who on Monday reaffirmed his pledge that every household in the nation would be connected to the internet by 2030.

https://time.com/6290366/gina-raimondo-internet-access-us-interview/ 

It's an overstatement to describe affordable access to advanced telecommunications services as a basic human right. But in any advanced nation like the United States with a well developed information socio-economy, it should be regarded as essential infrastructure and treated as basic utility. As such, it should not require any given community to advocate for it.

That requires reconnoitering telecom policy that has since the 1990s treated it as privately owned market commodity sold based on throughput measured in megabits per second and latency. The Biden administration's Infrastructure Investment and Jobs Act of 2021 is a good first step in this redefinition. And the administration is remedying a defect in the law that retained the market commodity framework by favoring fiber to the premise (FTTP) infrastructure for some $43 billion in grants to the states authorized by the Act to subsidize its long overdue construction. 

The administration and Congress should look to regional public entities to provide FTTP as that essential utility, much like regional airports to use a metaphor offered by the president of one such entity, the Golden State (California) Connect Authority.

Handful of states draft BEAD Five-Year Action Plans

A handful of states have drafted Five-Year Action Plans required 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). The Action Plans due this year 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.”

Montana estimates universal service between 2026 and 2029, cautioning several factors could delay universal service including a labor gap, supply chain issues and industry participation. “In keeping with the BEAD NOFO, Montana has analyzed the estimated amount of subsidy needed to serve all unserved and upgrade all underserved in Montana with fiber,” the plan states. It notes the state is not anticipated to have sufficient funding to connect all unserved and underserved locations with fiber but does not address how the funding shortfall will be bridged. The state estimates it would need an estimated subsidy allocation of $628-754M to serve all unserved locations. Montana was awarded $629M in BEAD funds this week by the NTIA.

Utah “will ultimately make broadband adoption universal for all Utahns by December 31, 2028, based on the expected funding amounts from the BEAD program as well as an assumption that the other funding programs maintain their historical investment levels in Utah.” The plan calls for fixed wireless or alternative solution to serve 4,000+ locations beyond the extremely high cost per location threshold. No cost estimate for universal service was provided in the Beehive State’s plan.

“Barring significant variation between actual deployment costs and initial estimates, Ohio is therefore estimated to reach universal service by the conclusion of BEAD in 2030, according to the Buckeye State’s draft plan. “When all funds – both allocated and modeled – for unserved and underserved locations are combined, the estimated deployment cost of reaching universal service in Ohio ranges between ~$1.142 billion and ~$1.612 billion.” The plan estimates the cost of extending fiber connections to all unserved and underserved locations would range from $515 million to $830 million. Ohio was awarded $794 million in BEAD funding by the NTIA.

AT&T apparently hoping for BEAD subsidies to replace DSL over copper with FTTP

AT&T is apparently hoping for BEAD subsidies to replace its legacy DSL services delivered over twisted pair copper with fiber to the premise (FTTP). States should take a flexible approach in subgranting the subsidies allocated by the National Telecommunications and Information Administration’s (NTIA) Broadband Equity, Access and Deployment (BEAD) program to afford “ISPs flexibility to identify project areas to include a mix of unserved and underserved locations will allow for the most efficient use of limited funds,” suggested Erin Scarborough, president, Broadband and Connectivity Initiatives in an April blog post. In a blog post this week, Scarborough stated that would allow providers to “identify project areas that combine unserved and underserved locations to enable the most effective and efficient deployments.” For AT&T, those would be locations served by legacy ADSL and VDSL, respectively.

That would comport with the BEAD program rules spelled out in the NTIA’s Notice of Funding Opportunity (NOFO). It permits states to subgrant up to 75 percent of construction costs to builds “constituting a single unserved or underserved broadband-serviceable location, or a grouping of broadband-serviceable locations in which not less than 80 percent of broadband-serviceable locations served by the project are unserved locations or underserved locations.” The NOFO defines “unserved” locations as those not marketed connectivity with throughput of less than 25/3 Mbps and latency exceeding 100ms. “Underserved” locations are those not offered at least 100/20 Mbps. That would encompass premises served by AT&T’s legacy DSL offerings delivered over obsolete twisted pair copper initially designed to support voice telephone service.

Whether states will have sufficient BEAD funding to subgrant subsidies for underserved locations remains to be seen after the NTIA announces state allocations next week. The BEAD NOFO requires states to award subgrants “that ensures the deployment of service to all unserved locations within the Eligible Entity’s jurisdiction.” These unserved locations are likely to be in lower density areas lacking wireline connections, requiring higher capital construction costs and subsidization.

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. 

Negative manifestations of market-based vs. publicly owned advanced telecommunications infrastructure policy

• Lack of coordinated federal advanced telecommunications infrastructure policy. 
• Highly fragmented deployment of fiber only where most profitable, highest ARPU.
• Advanced telecommunications marketed as “broadband” and sold in individually priced speed tiers.
• Widespread complaints and media coverage of poor access, “slow speeds” high monthly cost, very expensive connection fees quoted by cablecos.
• Localities adversely impacted by advanced telecommunications infrastructure deficits, attempt to address on their own with federal and state grants amid constituent tax/fee resistance due to adverse demographics/socioeconomics. Spawns cottage industry of consultants conducting feasibility studies and high level estimates. Vast majority result in no infrastructure construction or commitment to serve all addresses.
• One time, highly restricted federal and state grant programs instead of permanent high-cost subsidy mechanism.
• No federal or state policy of universal service. Universal service legislation does not advance. Years of dashed political promises of universal service. Sloganeering in lieu of actionable policy.
• Issue muddling, deflection/distraction from infrastructure to secondary issues:
• "Broadband adoption"
• Digital equity/digital skills
• Net neutrality
• Incumbent protectionism via broadband mapping, inflated service area and throughput claims, “ground truthing” speed tests.
• Reliance upon interim technology (DSL over copper) wireless technologies (fixed and mobile wireless, satellite) vs. FTTP.
• Capitulation to investor-owned incumbent provider control of telecom policy. Influence dominates over merits of policy that allow minority shareholder interests to prevail over broader public interest.
• Misapprehension: Complaints of market “monopolies” that fail to recognize telecom infrastructure like other utilities functions as natural monopoly. Feeds into privately owned provider paradigm that advanced telecommunications infrastructure a competitive market and government should therefore not own advanced telecommunications infrastructure.

States should use BEAD mandated coordination with localities to build support for bond funding for universal FTTP, rapid permitting

The National Telecommunications and Information Administration’s (NTIA) Broadband Equity, Access and Deployment (BEAD) program requires states to "rigorously explore ways” to cover the cost of advanced telecommunications infrastructure builds eligible for BEAD subsidies with other sources of funding. BEAD also charged states with developing strategies to ensure universal access as part of their required Five-Year Action Plans due this year.

"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,” said U.S. Department of Commerce Secretary Gina Raimondo, whose department oversees the NTIA and BEAD. While the Infrastructure Investment and Jobs Act (IIJA) of 2021 appropriates $42.5 billion for advanced telecommunications infrastructure, it won’t achieve this alone. As BEAD guidance notes, states and regions within them are going to have to come up with additional funding strategies such as long term bonds to cover the capital construction costs and potentially initial operating costs of publicly owned fiber in order to ensure universal, affordable access and further digital equity. Publicly owned fiber is particularly needed given the reduced likelihood private, investor owned providers will be able to profitably offer service affordable to lower income households.

States will also have to gain the cooperation of local governments to ease permitting of advanced telecommunications infrastructure. “Eligible Entities and their political subdivisions are strongly encouraged to remove time and cost barriers associated with BEAD projects, including by expediting permitting timelines and waiving fees where applicable, where doing so does not undermine other critical policy goals,” the BEAD Notice of Funding Opportunity (NOFO) states.

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.

BEAD funding fight between private, public sectors joined

With the naming of former U.S. Federal Communications Commission nominee and staffer Gigi Sohn as the first executive director of the American Association for Public Broadband, the battle between the public and private sectors over $42.5 billion in advanced telecommunications infrastructure funding has been joined.

The AAPB’s mission is to “build a diverse membership of public broadband networks from around the country, and advocate in support of municipal broadband and local choice at the federal, state, and local levels.” Sean Gonsalves of the Institute for Local Self Reliance’s Community Networks reports from the Broadband Communities Summit held in Houston this week where Sohn announced her new role after withdrawing as the Biden administration’s nominee to fill a vacant FCC seat amid strong opposition from telephone and cable companies:

When (Sohn) officially takes the reins at AAPB beginning in June, she said her top priorities would be to increase AAPB membership beyond its current “handful of members,” advocate for municipal broadband and other public entities to have access to the $42.5 billion in broadband deployment funds forthcoming from the Infrastructure Investment and Jobs Act (IIJA) – “at least on an equal basis as private providers” – and to tell the positive stories that will “make public broadband a thing that towns and communities want to have.”

Those companies also hope to snag some of the funds once they are allocated to the states as federal block grants later this year under National Telecommunications and Information Administration’s (NTIA) Broadband Equity, Access and Deployment (BEAD) program. Like the AAPB, they too will claim they deserve an equal shot at the funds. One recently urged Oregon state officials to adopt a “business model agnostic” stance in awarding subgrants, a talking point likely to be repeated in other states. But that could run into local opposition as states do their community and outreach and engagement as required by BEAD from residents and businesses that for years complained of redlining and poor service by the legacy providers.

Federal, state legislation that would regulate Internet as common carrier telecom utility stalls

H.R. 8573, proposed legislation that would subject internet service to regulation as a common carrier telecom utility under Title II of the Communications Act has stalled in Congress. A similar measure introduced in the California legislature, AB 1714, is also not advancing. Neither bill has been set to be heard in committee.

FCC’s seesawing stance on regulation of internet services could soon end

The two-decade-long back and forth at the U.S. Federal Communications Commission over whether internet access should be regulated as a common carrier telecommunications utility under Title II of the Communications Act or as an Information Service under Title I of the law could soon end.

That’s the likely upshot if the U.S. Supreme Court as predicted by legal pundits overturns its 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984). That ruling -- which established the doctrine of judicial deference to agency administrative law interpretations of statutes when they could be construed ambiguously -- will be revisited by the high court in Loper Bright Enterprises v. Raimondo, granted review this week.

If the court abandons the Chevron doctrine as expected, the question of how internet service is to be regulated would be left to Congress and the courts rather than administrative agencies like the FCC. That could have major implications for the FCC’s current policy expressed in its 2018 Restoring Internet Freedom order, classifying internet service as an information service under Title I. Accordingly, providers are not required to honor reasonable requests for connections or subject to rate regulation by state public utility commissions had they would if classified as telecommunications providers under Title II.

Should that order come back before the Supreme Court should it overturn the Chevron doctrine, it could also be invalidated along with the court’s decision in National Cable & Telecommunications Association, et al. v Brand X Internet Services, et al. 545 US 967 (2005). Supreme Court Justice Clarence Thomas, who wrote the decision for the majority, has expressed misgivings over it. In that case, the high court ruled the FCC’s determination that internet service provided by cable companies should be regulated under Title I was a reasonable interpretation of ambiguous provisions of the 1996 Telecom Act under the Chevron doctrine. In the 18 years since the Brand X ruling, cable companies have become the dominant provider of internet connectivity in the United States.

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.

After decades and a patchwork of grant programs, what’s next for U.S. advanced telecommunications infrastructure policy?

By the late 1980s and early 1990s when it became apparent internet protocol-based telecommunications would replace legacy analog voice and cable TV, the United States failed to put in place policies to ensure the timely modernization of its delivery infrastructure – twisted pair copper telephone and coaxial cable, respectively – to fiber optic lines. Instead of integrated, comprehensive policy, it developed a patchwork of grant programs to attempt to fill in holes in a giant Swiss cheese, crazy quilt pattern of fiber infrastructure construction by a mix of public, consumer cooperative and mostly private sector corporations.

That became a paper chase of “broadband mapping” designed sort grant eligible holes from the cheese, including controversy over what meets government quality standards for the cheese. While nominally intended to expand affordable access to advanced telecommunications – something that enjoys widespread support -- the process is an adversarial one prone to delay and controversy. Incumbent providers – typically investor owned – claim they already sell cheese where another entity insists there’s a hole, requesting grant funding to build fiber to fill it.

The competitive paper chase is posed to heat up considerably in 2023 as the federal and state governments determine how to allocate nearly $43 billion in grants earmarked for advanced telecommunications infrastructure in the Infrastructure Investment and Jobs Act (IIJA) of 2021.

Even after all that "once in a generation" money is spent, the nation will likely continue to come up short getting fiber to every doorstep without resolving the larger question of how is the infrastructure optimally owned and operated to ensure universal affordable access and uniform service level and reliability standards. Government owned regional advanced telecom authorities along with utility cooperatives are the best option since the short term, market segmented business models of investor owner/operators don’t lend themselves to attaining these. They are also better able to ensure ongoing financial support and stability without the need to generate profits for investors.

This is not to say there isn’t a role for investor-owned entities. There is plenty of work for them to design, build, operate and offer services over the fiber infrastructure just as is the case with other public works such as transportation infrastructure. But as history has shown with the nation’s fragmented Swiss cheese advanced telecommunications infrastructure, they can never place the public interest in ubiquitous, affordable access to modern infrastructure ahead of that of their shareholders and can only build fiber where it generates a relatively rapid return on investment. Telecom policymakers should act accordingly and appropriately assign the roles and players instead of the futile effort of sorting the “broadband” holes from the cheese.

IIJA provides NTIA opportunity to route around flawed "broadband map," use infrastructure-based standard for subsidization.

Extending the process to challenge the U.S. Federal Communications Commission’s data on the availability of broadband Internet access service proposed in recently introduced federal legislation won’t ultimately lead to complete and accurate data for the allocation of infrastructure subsidies to the states. The reason as Doug Dawson details in a blog post is the data is based on marketing claims of providers of where they provide service.

ISPs are pretty much free to claim whatever they want. While there has been a lot of work done to challenge the fabric and the location of possible customers – it’s a lot harder to challenge the coverage claims of specific ISPs. A true challenge would require many millions of individual challenges about the broadband that is available at each home.

While that’s consistent with the nation’s current market-based regulatory paradigm for advanced telecommunications, it can’t possibly be complete and accurate. Nor is it intended to be. The purpose of marketing is to create brand awareness and attract potential customers, not for planning the deployment of critical infrastructure.

Fortunately, the Infrastructure Investment and Jobs Act (IIJA) provides a workaround to the fool’s errand of “broadband mapping” based on marketing claims. It does so with a flexible definition of “broadband” that would allow it to be defined in administrative versus statutory law. Section 60102(a)(2)(B) of the IIJA defines it by reference to 47 Code of Federal Regulations 8.1(b):

Broadband internet access service is a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence or that is used to evade the protections set forth in this part.

or any successor regulation. (Emphasis added)

Although the context clearly refers to the FCC, there is nothing in the statutory language that limits the promulgation of a successor regulation to the FCC. The National Telecommunications and Information Administration (NTIA), which has prioritized fiber to the premises (FTTP) delivery infrastructure for subsidization in its Broadband Equity, Access and Deployment (BEAD) program, could promulgate its own regulation citing this authority in the IIJA. 

Such a rulemaking could use a fiber infrastructure-based subsidization eligibility standard, consistent with the IIJA’s intent to modernize and expand critical infrastructure in the 21st century. That could include a different challenge process based on the rebuttable presumption that FTTP doesn’t exist -- very likely in what the IIJA identifies as subsidy eligible areas with poor existing service. Those that would challenge FTTP subsidies would be required to show that it does and passes all addresses in their service areas with an exception for extremely remote locations. 

As Dawson writes, "Grant funding could have been done in other ways that didn’t rely on the maps. I don’t think it’s going to make much difference if we delay six months, a year, or four years – the maps are going to remain consistently inconsistent."