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Rick Boucher: Data Privacy Rules Should Create Consistency, Not Chaos

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Following a string of data breaches that touched tens of millions of consumers, and revelations of user data exploitation by popular social media platforms, there’s a broad national consensus: It’s time for internet users to have guarantees about privacy and data protection. Legislation is long overdue.

Some states, such as California, have already taken action. One year ago, California passed a sweeping privacy protections law. Other states have expressed an intention to do so, and Congress is expected to consider legislation. What’s the best way forward?

Congress must take its responsibility to protect user privacy and data seriously. At a minimum, any new federal law should provide internet users with the knowledge of which personal information is collected by the websites they visit and how that information is used. They should have a meaningful opportunity to opt out of these collection and use practices.

Congress should also ensure that any user’s sensitive personal identification information — such as a driver’s license, credit card number or Social Security number — can be collected and retained only with that user’s consent. Reasonable rights to access and correct user-provided information should also be afforded.

But it’s important to realize that web services are offered on a national basis and many would be disrupted by a multiplicity of diverse and contradictory state privacy requirements. The compliance costs could be enormous, particularly for small and startup businesses. There may be situations where it’s literally impossible to comply with the conflicting requirements of different states’ laws.

Not only would compliance with various state requirements be exceedingly difficult, consumers would be constantly unsure about which state’s privacy requirements apply. Consider the mobile service provider whose customer lives in one state, travels to another state and accesses an e-commerce site headquartered in a third state. The service provider is headquartered in a fourth state and uses a server data center in a fifth state.

Whose law applies — the state of residence of the customer or internet edge provider? The state of location of the customer or that of the service provider? Or the state where a server sends and receives customer messages?

To avoid this obvious confusion, it’s far better for Congress to adopt one strong, clear national privacy standard that would be applicable across the entire internet ecosystem, from the service provider to content-providing companies. In order to prevent disruption and consumer confusion in the application of an internet privacy law, Congress should pass its own privacy standard that preempts the states from their own regulation.

Such action would certainly not be new. Congress routinely preempts states in instances where a single uniform national standard is called for.

For example, in the Energy Policy and Conservation Act, Congress preempted state (and local) action on the energy efficiency of appliances where a national standard is in place. In the Toxic Substances Control Act, Congress preempted state action in favor of national regulation of chemicals covered by Environmental Protection Agency rules. Congress has also been quite clear that action by the Food and Drug Administration preempts conflicting state standards in the area of approval of new pharmaceuticals and medical devices.

Appliances, chemicals, prescription drugs, medical devices — all of these are goods of major importance to the national economy. So too is e-commerce involving the sale of both physical and digital goods. Federal preemption was right in the areas referenced above and, to avoid harming the internet economy and preventing consumer misunderstanding, is also right for data privacy standards.

It would be a critical mistake for Congress to enact a data privacy law that only provides a base from which the states can add additional requirements. Through the resulting disruption and chaos, harm would come to the internet economy while doing little if anything to advance real privacy for internet users.

A single, strong national data privacy standard would provide clear rules for companies to follow while fostering consumer understanding of the privacy assurances that have been extended to them.

Fortunately, the need for data privacy protection enjoys rare, widespread bipartisan support. It’s now Congress’ turn to act.

Rick Boucher was a member of the U.S. House for 28 years, representing Virginia’s ninth district. He chaired the House Energy and Commerce Committee’s Subcommittee on Communications and the Internet. He is honorary chairman of the Internet Innovation Alliance and a partner in the Washington, D.C., office of the law firm Sidley Austin. (This piece was originally published in the San Francisco Chronicle on June 26, 2019, and is reprinted with permission of the author.)

BroadbandBreakfast.com accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@broadbandcensus.com. The views reflected in Expert Opinion pieces do not necessarily reflect the views of BroadbandBreakfast.com and Breakfast Media LLC.

Rick Boucher was a member of the U.S. House for 28 years, representing Virginia’s ninth district. He chaired the House Energy and Commerce Committee’s Subcommittee on Communications and the Internet. He is honorary chairman of the Internet Innovation Alliance and a partner in the Washington, D.C., office of the law firm Sidley Austin.

Broadband's Impact

Lindsay Mark Lewis: As Inflation Spiked, Broadband is ‘The Dog That Didn’t Bark’

Why have internet prices remained constant while demand surges? It all boils down to investment.

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The author of this Expert Opinion is Lindsay Mark Lewis, executive director of the Progressive Policy Institute.

There are many lessons to be learned from last year’s midterms, but Democrats should not take the results as some broad endorsement of the economic status quo. Midterm voters identified inflation as the most important issue driving their votes. And while the latest Labor Department data shows the producer price index decreasing by 0.1% in February, prices remain 4.6% higher than a year ago, which means lawmakers still have work to do to bring inflation under control.

And as they search for ideas, they may want to examine the dog that didn’t bark – in particular, the one sector of the economy that has been an interesting counternarrative to the otherwise troubling inflation story.

Home internet service is one of the few major living costs that isn’t skyrocketing. In fact, the most popular broadband speed tier one year ago actually costs 15% less today, on average.

This success story – and the bipartisan policies behind it – offers important lessons.

Remarkably, broadband prices are declining even as demand surges. The pandemic made home internet service more essential than ever for education, job opportunities and health care – all driving internet traffic 25% to 50% above pre-pandemic levels.

So why have internet prices remained constant – even declined by some measures – while demand surges? In short, it all boils down to investment.

When the pandemic cratered economic activity in the spring of 2020, executives in many industries – from lumber to oil refineries to computer chips – made the snap decision to pull back on long-term investments in new factories and manufacturing capacity. When the economy roared back, those industries couldn’t meet demand, sending prices soaring.

In the broadband industry, conversely, providers responded by investing $86 billion into their network infrastructure in 2021 – the biggest one-year total in nearly 20 years. These investments are fueling faster speeds – fixed broadband speeds are up 35% nationwide in the past 12 months – while making sure networks have the capacity to handle growing traffic needs.

This teaches us three things.

First, we should observe a Hippocratic oath and “do no harm.” America’s broadband system has thrived under a decades long bipartisan consensus for light-touch, pro-investment policies. Nearly $2 trillion in private capital built the networks that now deliver American consumers higher speeds at lower per-megabit prices than consumers enjoy in Europe, despite having to cover greater distances and more difficult terrain.

This further tells us that it’s precisely the wrong time to abandon this successful model in favor of price controls and utility-style regulation, as some House and Senate progressives have proposed. Even Democratic policy experts acknowledge that approach would be toxic for private investment.

Second, policymakers need to recognize that broadband isn’t immune from the supply chain crunches plaguing so many other sectors of the economy. Broadband buildouts are already getting delayed by shortages in fiber cable, network hardware and skilled labor. And that’s before $42 billion in federal infrastructure funding goes out the door starting next year, which will only intensify demand for these scarce supplies.

That means rural buildout projects funded by federal dollars are likely to see inflationary pressures – and take longer to complete – than Congress expected when it passed the infrastructure bill in 2021. That will put pressure on state broadband offices to be even more diligent about waste, and to emphasize reliable supply chains with experienced network builders. Bidders will also need the flexibility to buy fiber from wherever they can manage to source it, even if that means relaxing the program’s strict “Buy American” rules. This requires a regulator ability to do smart tweaking of rules to expedite buildouts cost-effectively.

Third, we need to help more financially struggling households get connected. Thanks to President Joe Biden’s Affordable Connectivity Program – and an agreement with 20 broadband companies – 48 million households can now get home internet service for free.

But more than a year later, just over a third of eligible households have signed up. Investing in enrollment campaigns and digital literacy training programs is the fastest way we can crank up the dial on enrollment. Relatively small investments here could pay huge dividends in bringing millions more Americans into the digital economy.

Even with these remaining challenges, the overall contours of American broadband policy – encouraging investment, competition and affordability – are working well. And as the saying goes: “If it ain’t broke, don’t fix it.” In an inflation-roiled economy that defies easy answers, we should learn from – not mess with – this all-too-rare success story.

Lindsay Mark Lewis is executive director of the Progressive Policy Institute. Contact him at llewis@ppionline.org. This piece was originally published in the Richmond Times on March 24, 2023, and is reprinted with permission.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

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Expert Opinion

David Strauss: How Will State Broadband Offices Score BEAD Applications?

Fiber, coax and fixed wireless network plans dependent on BEAD funding demand scrutiny.

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The author of this Expert Opinion is David Strauss, Principal and Co-Founder of Broadband Success Partners.

Given the vital ways in which access to broadband enables America, adequate Internet for all is a necessary and overdue undertaking.  To help close the digital divide, the Infrastructure Investment and Jobs Act includes $42.5 billion in Broadband Equity, Access and Deployment funding for the last mile. Add to this the estimated level of subgrantee matching funds and the total last mile figure rises to $64 billon, according to the BEAD Funding Allocation and Project Award Framework from ACA Connects and Cartesian.

The federal funds will be disbursed by the Department of Commerce’s National Telecommunications and Information Administration to the State Broadband Offices who will then award subgrants to service providers. On June 30, each state will find out their allocation amount. By 2024, the states will establish a competitive subgrantee process to start selecting applicants and distributing funds.

A critical element of the selection process is the methodology for scoring the technical merits of each subgrantee and their proposal. Specific assessment criteria to be used by each state are not yet set. However, the subgrantee’s network must be built to meet these key performance and technical requirements:

  • Speeds of at least 100 Megabits per second (Mbps) download and 20 Mbps upload
  • Latency low enough for “reasonably foreseeable, real-time interactive applications”
  • No more than 48 hours of outage a year
  • Regular conduit access points for fiber projects
  • Begin providing service within four years of subgrant date

What level of scrutiny will each state apply in evaluating the technical merits of the applicants and their plans?

Based on our conversations with a number of state broadband leaders, the answers could be as varied as the number of states. For example, some states intend to rigorously judge each applicant’s technical capability, network design and project readiness. In contrast, another state believes that a deep upfront assessment is not needed because the service provider will not receive funds until certain operational milestones are met. Upon completion, an audit of the network’s performance could be implemented.

We, at Broadband Success Partners, are a bit biased about the level of technical scrutiny we think the states should apply. Having assessed over 50 operating and planned networks for private sector clients, we appreciate the importance of a thorough technical assessment. Our network analyses, management interviews and physical inspections have yielded a valuable number of dos and don’ts. By category, below are some of the critical issues we’ve identified.

Network Planning & Design

  • Inadequate architecture, lacking needed redundancy
  • Insufficient network as-built diagrams and documentation
  • Limited available fiber with many segments lacking spares

Network Construction

  • Unprotected, single leased circuit connecting cities to network backbone
  • Limited daisy-chained bandwidth paths on backhaul network
  • Lack of aerial slack storage, increasing repair time and complexity

Network Management & Performance

  • Significant optical ground wire plant, increasing potential maintenance cost
  • Internet circuit nearing capacity
  • Insufficient IPv4 address inventory for planned growth

Equipment

  • Obsolete passive optical network equipment
  • Risky use of indoor optical network terminals in outdoor enclosures
  • Sloppy, untraceable wiring

Technical Service / Network Operations Center

  • Technical staff too lean
  • High labor rate for fiber placement
  • Insufficient NOC functionality

While the problems we uncover do not always raise to the level of a red flag, it happens often enough to justify this exercise. Our clients who invest their own capital in these networks certainly think so. The same should hold true for networks funded with taxpayer money. Fiber, coax and fixed wireless network plans dependent on BEAD funding demand serious scrutiny.

David Strauss is a Principal and Co-founder of Broadband Success Partners, the leading broadband consulting firm focused exclusively on network evaluation and technical due diligence. This piece is exclusive to Broadband Breakfast.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

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Expert Opinion

Raul Katz: Can Investments in Robust Broadband Help States Limit the Downside of Recession?

If managed effectively, the BEAD program could play a key role in allowing our economy to weather the storms ahead.

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The author of this Expert Opinion is Raul Katz, President at Telecom Advisory Services LLC.

The United States economy is still undergoing persistent inflation rates, high interest rates, and stock market volatility. According to a Wall Street Journal survey conducted in January, economists put the probability of a recession at 61 percent.

Simultaneously, we are also on the eve of the largest federal broadband funding distribution in American history. All 50 U.S. states have begun formulating plans to help connect their communities through the $42.5 billion Broadband Equity, Access and Deployment Program, and its funds are expected to be distributed within months. That, coupled with the Affordable Connectivity Program  and other initiatives designed to subsidize broadband access, will play a critical role in connecting every American to the internet. This once-in-a-generation investment in building more robust and resilient broadband networks can help states weather the coming economic storm. To learn how, we simply need to look back to March 2020.

When the COVID-19 pandemic initially cratered the economy, states that had a higher rate of fixed broadband penetration were more insulated from its disruptive effects. Simply put, better-connected states had more resilient economies according to a study I authored for Network:On. In a separate study, by using an economic growth model that accounts for the role fixed broadband plays in mitigating the societal losses resulting from the pandemic, I also found that more connected societies exhibit higher economic resiliency during a pandemic-induced disruption.

In the study conducted for Network:On, we documented that U.S. states with higher broadband adoption rates were able to counteract a larger portion of the economic losses caused by the pandemic than states with lower broadband adoption rates. The states most adversely affected by the pandemic, such as Arkansas and Mississippi, were those exhibiting lower broadband penetration rates. Conversely, states with higher broadband penetration, such as Delaware and New Jersey, were able to mitigate a large portion of losses, as connectivity levels allowed for important parts of the economy to continue functioning during lockdowns.

Nationally, if the entire U.S. had penetration figures equal to those of the more connected states during the pandemic, the GDP would have contracted only one percent— a much softer recession than the actual 2.2 percent. These findings show that investments in closing the digital divide and ensuring everyone can access a high-speed Internet connection are critical to building economic resilience.

Today, wide penetration rate disparities exist between states — such as Delaware’s rate of 91.4 percent compared to Arkansas’ rate of 39.7 percent. Because of this, public authorities should focus on creating policy frameworks that allow operators to spur infrastructure deployments and find the optimal technological mixes to deliver the highest performance to users.

Broadband access matters. It doesn’t exist in a vacuum and is crucial to an area’s economic health. As state broadband offices around the country prepare to deploy BEAD funding, they must remember that broadband access and adoption are imperative to building economic resiliency.

Beyond my own study, a review of the research examining the economic impact of digital technologies over the past two decades confirms that telecommunications and broadband positively impact economic growth, employment, and productivity. This reinforces how consequential these government investments in broadband infrastructure and adoption are to protecting America’s economic health.

The BEAD program still has its challenges, but if managed effectively, it could play a key role in allowing our economy to weather the storms ahead.

Dr. Raul Katz is the president at Telecom Advisory Services LLC and author of the study: The Role of Robust Broadband Infrastructure in Building Economic Resiliency During the COVID-19 Pandemic. This piece is exclusive to Broadband Breakfast.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

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