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National Association of Counties

Reply Comments of David Shaw and Drew Clark on the Removal of State Barriers to Broadband Investment and Competition

in FCC Comments by

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554

[Original PDF]

In the Matter of: Petition of City of Wilson, North Carolina, Pursuant to Section 706 of the Telecommunications Act of 1996, Seeking Removal of State Barriers to Broadband Investment and Competition Petition of Electric Power Board of Chattanooga, Tennessee, Pursuant to Section 706 of the Telecommunications Act of 1996, Seeking Removal of State Barriers to Broadband Investment and Competition

WCB Docket No. 14-115
WCB Docket No. 14-116

REPLY COMMENTS OF DAVID SHAW AND DREW CLARK OF
KIRTON McCONKIE
David Shaw
Drew Clark
Kirton McConkie
Thanksgiving Park Four
2600 W. Executive Parkway
Suite 400
Lehi, UT 84043
(801) 426-2100

September 29, 2014

The Utah Telecommunications Open Infrastructure Agency is an interlocal entity
under Utah law offering private companies the opportunity to sell ultra-high-speed broadband
services. For approximately 10 years, this platform has offered a fiber-optic “open access”
platform for private-sector broadband providers. Amidst the vibrant national debate about
municipalities offering Internet services, policy-makers should not neglect the role of “open
access” networks. Indeed, David Shaw and Drew Clark of Kirton McConkie offer these reply
comments to emphasize the strong synergies between a municipality’s obligations to serve as the guardian of its rights-of-way; the emerging opportunities for government entities to work with public-private partners in constructing or enhancing universal fiber-optic infrastructure; and the role that “open access” plays in fostering robust private-sector competition.

It is vital that public dialogue reflect an understanding of why the 11 pledging cities
participating in the Utah Telecommunications Open Infrastructure Agency – Brigham City,
Centerville, Layton, Lindon, Midvale, Murray, Orem, Payson, Perry, Tremonton and West
Valley City – value universal access to Gigabit Networks so highly.

Grass-roots dissatisfaction with low Internet speeds and high prices charged by large
cable and telecommunications companies has ramped interest in bringing Gigabit Networks to cities across the country. Google Fiber, for example, garnered extensive publicity with its “Think Big with a Gig” competition in 2010. More than 1,100 cities applied to get fiber. As is well known, the company picked Kansas City, and later Austin, Texas, and Provo, Utah. It is currently exploring potential partnerships with an additional nine cities.

But Google can’t go everywhere. That’s why more than 143 communities 1 – in states
from Alabama to Wyoming – are currently developing or considering the use of public-private
partnerships to ensure deployments for our beyond-Gigabit future.

Unfortunately, most discussions of Gigabit Networks simply continue along the
entrenched monopoly mindset. Below are important representative examples of communities
deploying open-access fiber networks.

Danville, Virginia. The filing by the National League of Cities, National Association
of Counties, U.S. Conference of Mayors, and National Association of Telecommunications
Officers and Advisors reads:

The City of Danville (population 42,996) once had the highest unemployment in the state. Their low-skilled, poorly educated population made it difficult to attract the types of industry that would sustain development in the region. While general communications access (telephone, cable TV, and Internet) was adequate for the home consumer, it was not optimized for businesses. Building a network that would help expand business opportunities as well as wire public anchor institutions was one of the key features of Danville’s approach to local economic development. The resulting open access, multiservice fiber network – nDanville –allows the city to provide direct service to schools and other city buildings as well as residential and business service. The network has been able to attract new businesses to the city and Danville has now gone from having the highest unemployment in Virginia to boasting a world-class technology infrastructure, revitalized downtown, new jobs, and a skilled workforce.2

Powell, Wyoming. The filing by the Coalition for Local Internet Choice makes these
important observations:

Powell exemplifies the way in which municipalities are using advanced communications systems to shrink the world and give its residents an opportunity to perform on a global platform. A South Korean venture capital firm has agreed to pay up to $5.5 million to engage 150 certified teachers in rural Wyoming to teach English to students in South Korea using high-speed video teleconferencing over Powell’s fiber-to-the-home system. The Powell fiber system will enable the Wyoming-based teachers to work from home. The company that developed this project is now planning similar projects for students in China, Japan, and Taiwan. The project has been so successful that the City was able to acquire full ownership of the project 18 years ahead of schedule.3

Utahns along the Wasatch Front can take pride in the role that the open-access Utah
Telecommunications Open Infrastructure Agency (“UTOPIA”) has played in bringing Utah to
the forefront of broadband innovation. Together with UTOPIA’s retail Internet service
providers – 17 of whom are currently available on the UTOPIA network – the speeds of
UTOPIA service are second to none, anywhere in the country.

With the right public-private partnership, the communities of the Utah cities along the
Wasatch Front will be well-prepared for future economic development.

A public-private partnership is a way of leveraging government resources without
incurring the expense of going to the capital markets and incurring more debt. Public-private
partnerships also give governments a means of ensuring “asset performance,” since payments to the private entity are based on fulfillment and performance. Such normal burdens as labor issues, debt and managing costs fall to the private partner.

Under the public-private partnership model, municipalities have oversight responsibility, but no direct day-to-day role in the build-out and operations of the network. A public-private partner becomes the network operator and wholesaler, overseen by a public entity composed of participating municipalities, to ensure that the contractually agreed performance standards are achieved. The network remains an open access network, with the public-private partner’s role being maximization of competition between providers on the network. The cities retain ownership of the network assets, and the public-private partner takes operational responsibility for the network over a 30-year period, effectively leasing the network from the cities.

Under the public-private partnership/”open access” model, the network operator becomes the provider of the “fiber highway” that an existing or new entrant can use to deliver data, voice, video and other services to customers. This highway is open to any provider that wishes to use it, including the incumbents.

We believe that the combination of public-private partnerships, together with “open
access,” must become a more central part of the discussion around municipal broadband.

FOOTNOTES

1 “Number of Community FTTP Networks Reaches 143,” Masha Zager, Broadband Communities, August/September 2014, pp. 10-22.

2 Comments of the National League of Cities, National Association of Counties, U.S. Conference of Mayors, and National Association of Telecommunications Officers and Advisors, FCC Docket 14-115, FCC Docket 14-116, August 29, 2014. (Internal citations omitted.)

3 Comments of the Coalition for Local Internet Choice, FCC Docket 14-115, FCC Docket 14-116. August 29, 2014. (Internal citations omitted.)

Trade Groups Urge Senate to Fully Fund Broadband

in Broadband Stimulus/NTIA/Rural Utilities Service/States by
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WASHINGTON July 15, 2010- The National Association of Telecommunications and Advisors (NATOA) and the National Association of Counties have sent a letter to Senators Reid, Durbin, Inouye, Rockefeller and Kerry urging them to prevent the House from rescinding broadband funding.

Recently there have been two separate bills in the house to shift $300 million in funds from the National Telecommunications and Information Administration and the Rural Utilities Service to be used for other purposes.

The letter states in part: “Job creation was one of the central purposes of the ARRA and the BTOP and BIP programs in particular. Budget cuts should be targeted at wasteful spending and unnecessary programs – they should leave alone programs that are intended to (and do) create jobs in a time when unemployment is such a significant issue for our country. Please reinstate the full funding for these critically important programs”

Adelstein at Broadband Breakfast Club: Challenges to Rural Adoption and Availability Include Speeds, Costs, Access and Relevence

in Broadband Data/Broadband TV/Broadband's Impact/States by

WASHINGTON, June 18, 2010 – BroadbandBreakfast.com on Friday released, for FREE, the full-length video of the Broadband Breakfast Club event on June 15, 2010: “Challenges to Rural Broadband Availability and Adoption,” featurng a keynote address by Jonathan S. Adelstein, Administrator of the Rural Utilities Service.

The event is available on BroadbandBreakfast.com at the following link.

In his  substantive keynote address, including questions and answers, Adelstein addressed the role that the RUS, and the Department of Agriculture, play in ensuring that broadband is brought to rural America.

Following Adelstein’s remarks, a panel of experts on rural broadband experts addressed the key questions pertaining to the subject. The discussion was moderated by Sharon McLoone, Managing Editor, BroadbandBreakfast.com.

The panelists included:

  • Curtis Anderson, Vice President & General Counsel, MELE Associates, Inc.
  • Jeffrey Arnold, Deputy Legislative Director, National Association of Counties
  • Steven K. Berry, President & CEO, Rural Cellular Association
  • Jennie B. Chandra, Regulatory Counsel & Director, Federal Government Affairs, Windstream
  • Claiborn Crain, Senior Professional Staff, House Committee on Agriculture

The event is available on BroadbandBreakfast.com at the following link.

Don’t miss the next Broadband Broadband Breakfast Club, on Tuesday, July 20, 2010, on “The Smart Grid, Telecommunications and the Electric Infrastructure.” Registration is available at http://broadbandbreakfast.eventbrite.com.

Also upcoming is the Intellectual Property Breakfast Club, on Tuesday, July 13, 2010: “The Anti-Counterfeiting Trade Agreement Treaty. ” Registration is available, for FREE, at http://ipbreakfast.eventbrite.com.

The Broadband Breakfast Club is sponsored by the Telecommunications Industry Association, the National Cable and Telecommunications Association, International Broadband Electric Communications, Inc., and the Benton Foundation.

For further information about sponsorship, contact sylvia@broadbandcensus.com, or call 646-262-4630. The Broadband Breakfast Club is Copyright © Broadband Census News LLC.

Telecom Experts Offer Last-Minute Advice to Broadband Stimulus Applicants

in Broadband Stimulus/NTIA by

WASHINGTON, August 12, 2009 – With just two days away from the deadline to apply for federal funds to cultivate broadband projects across the nation, telecommunications experts offered their advice on the future of the grants process.

Casey Lide, an attorney with the Baller Herbst Law Group, said during the webinar hosted by Governing.com that he believes there will be two more rounds of funding for these types of projects although acknowledged that a third round isn’t guaranteed.

Lide expects future rounds may not focus as intently on getting broadband to the unserved and underserved parts of the country, as the first round has done.

“There was quite a lot of surprise and disappointment [about that focus] among the local government community,” he said. “There was a perception that…the program focused too much on the unserved and underserved” at the expense of other, innovative high-bandwidth projects.

He sees the first round of funding as an attempt to create a “thin skinned layer of broadband in rural areas of the country.”

Lide said local folks are hoping that the next rounds will be “more friendly” to local governments and municipalities.

Deputy Director of Legislative Affairs Jeff Arnold, who works for the National Association of Counties, said counties want broadband even if it’s not the fastest broadband available. “When you have nothing, even 768 Kbps [kilobits per second] is good,” he said, referring to the minimum requirement for how speedy the new broadband projects must be able to deliver data downstream.

“The biggest issue for rural America is [they] want it but need to be able to drive its adoption,” he said, adding that broadband suppliers have to be convinced to serve these areas.

Brad Ramsay, the general counsel for the National Association of Regulatory Utility Commissioners, said California and other states have been recommending that applicants file early this week because of concern over the ability of the Web site taking applications to handle them all.

“One person was telling me that the Web site was already abysmally slow as of Monday,” he said.

For other people, it’s a problem that may never even come to fruition. Ramsay noted that applications requesting $1 million or more must be filed electronically. However, counties that don’t have broadband aren’t able to file the complicated, lengthy document online and so scrapped plans to take part in the process.

“It’s the ultimate irony of ironies,” he said.

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