California legislation would adopt definition of digital discrimination

Proposed California legislation would codify in state law a definition of “digital discrimination of access.” AB 2239 would define it as “policies or practices, not justified by genuine issues of technical or economic feasibility, that differentially impact consumers’ access to broadband internet access service based on their income level, race, ethnicity, color, religion, or national origin, or that are intended to have a differential impact.”

That mirrors the Federal Communications Commission’s Preventing Digital Discrimination rulemaking adopted in November as mandated by section 60506 of the Infrastructure Investment and Jobs Act of 2021 (IIJA). Section 60506 defines equal access as “the equal opportunity to subscribe to an offered service that provides comparable speeds, capacities, latency, and other quality of service metrics in a given area, for comparable terms and conditions.”

The FCC’s Preventing Digital Discrimination rulemaking is predicated on the notion that business decisions on where to deploy infrastructure and offer advanced telecommunications services can disadvantage households based on these demographic factors, even if not intentional. But Section 60506 gives deployers the ability to defend their infrastructure and service offerings based on technical and economic feasibility. That can easily trump any claim of discriminatory impact -- intentional or not -- in the nation’s market-based and predominately investor owned advanced telecommunications infrastructure.

Since IP telecom is currently classified as lightly regulated optional information service under Title I of the Communications Act and not as a common carrier utility, providers are free to deploy delivery infrastructure wherever they wish and at rates of their choosing. Naturally, they are going to prefer denser, higher income neighborhoods that will produce faster return on capital investment (ROI) and where households are less price sensitive and more inclined to subscribe to higher priced services, thereby maximizing average revenue per unit (ARPU).

Notably, California’s Digital Equity Bill of Rights that took effect in January, states public policy that “to the extent technically feasible, broadband internet subscribers benefit from equal access to broadband internet service within the service area of a broadband provider.”(Emphasis added) Notably, that omits the economic feasibility defense of the FCC’s Preventing Digital Discrimination rulemaking and proposed by AB 2239. 

That's an important difference from AB 2239 because technical feasibility is a far broader term comparable to the federal government's definition of a "broadband serviceable location" as “a business or residential location in the United States at which fixed broadband Internet access service is, or can be, installed." That definition is used in the National Telecommunications and Information Administration's Broadband Equity, Access, and Deployment (BEAD) subsidy program. A location may be serviceable. But building infrastructure to serve it may not be economically feasible if the business case justifying deployment isn't present.

Like private investor owned providers, revenue bond financed publicly owned fiber networks seek urban and suburban density.

In Colorado, municipally-owned Pulse was able to fund its network through revenue bonds which were backed by the Loveland electric utilities enterprise fund. A revenue bond is a type of municipal bond typically used to fund projects that are expected to generate revenue, like public utilities. Unlike general obligation bonds, which are backed by the taxing power of the issuing government, revenue bonds are supported by the income generated from the project they are financing.

https://www.fiercetelecom.com/broadband/communities-gain-diy-network-guide-despite-public-broadband-skeptics

This type of financing is feasible when the d (density) factor is sufficient such that bond underwriters are willing to underwrite knowing the density equates with sufficient revenues to service the debt. A locality like Loveland offers that with a population of 2,219 per square mile according to 2020 U.S. Census data. As the linked blog post above notes, it’s difficult to meet that underwriting standard in less densely populated exurban areas. That’s where publicly owned fiber to the premise (FTTP) advanced telecommunications infrastructure is most needed since the return on investment isn’t there for investor owned companies.

The unrealized policy goal of universal internet access

2000 Democratic Party Platform on "Bridging the Digital Divide"

Democrats believe that every American - regardless of income, geography, race, or disability - should be able to reach across a computer keyboard, and reach the vast new worlds of knowledge, commerce, and communication that are available at the touch of a fingertip.

That is why Democrats fought for the e-rate to wire every classroom and library to the Internet. In the next four years, we must finish connecting the job and then go further.

We must launch a new crusade - calling on the resources of government, employers, the high-tech industry, community organizations, and unions - to move toward full Internet access in every home, for every family, all across the United States. We must make sure that no family or community is left out. We must not rest until Internet access is universal.

Bush calls for universal broadband by 2007

Reaching back to revive an idea promoted by the man he beat for the White House, President Bush urged Friday that affordable high-speed Internet access be available to all Americans by 2007, saying it was essential to the nation’s economic growth.

Bush traveled to the Southwest largely to promote home ownership but spoke briefly about Internet access in remarks reminiscent of 2000 Democratic presidential nominee Al Gore’s call for an “information superhighway” available to all Americans. 

State of the Union address, President Barack Obama, January 24, 2012

"We’ve got crumbling roads and bridges; a power grid that wastes too much energy; an incomplete high-speed broadband network that prevents a small business owner in rural America from selling her products all over the world.”