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.