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."