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Christopher Mitchell: Treasury Department Rescue Plan Act Rules Improve Broadband Funding

The Treasury Department has resolved all of the concerns that the Institute for Local Self Reliance identified in May.

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The author of this Expert Opinion is Chris Mitchell, director of the Community Broadband Networks Initiative at Institute for Local Self-Reliance

Communities across the United States got an unexpected gift from the Biden Administration last week in the form of additional flexibility to use Rescue Plan funds for needed broadband investments, particularly those focused on low-income neighborhoods in urban areas.

When Congress developed and passed the American Rescue Plan Act, it tasked the Treasury Department with writing the rules for some key programs, including the State & Local Fiscal Recovery Funds (SLFRF). That program is distributing $350 billion to local and state governments, which can use it for a variety of purposes that include broadband infrastructure and digital inclusion efforts.

Treasury released an Interim Final Rule in May, 2021, detailing how local governments would be allowed to invest in broadband. I promptly freaked out, at the restrictions and complications that I (and others) feared would result in local governments backing away from needed broadband investments due to fears of being out of compliance with the rule.

After we worked with numerous local leaders and the National League of Cities to explain the problems we saw in the proposed rule, Treasury released updated guidance in the form of a Q&A document to explain how local governments would be able to build and partner for needed networks.

Given the many challenges the Biden Administration has had to deal with, we did not expect significant new changes to the Rescue Plan rules around the SLFRF. But after many months of deliberations, the Treasury Department has resolved all of the concerns that we identified as areas of concern in May.

As we explain below, local governments have wide latitude to use SLFRF funds for a variety of needed broadband infrastructure investments, especially to resolve affordability challenges.

Summary and TL;DR

The rest of this post will cover some key points in the Final Rule with references to the text in the hopes that it will help communities better understand their options and share key passages with their advisers and attorneys.

The SLFRF Final Rule weighs in at just under 500 pages and comes with an overview. The overview focuses on broadband on pages 39-40 and includes this summary toward the beginning:

Recipients may fund high-speed broadband infrastructure in areas of need that the recipient identifies, such as areas without access to adequate speeds, affordable options, or where connections are inconsistent or unreliable; completed projects must participate in a low-income subsidy program.

The relevant broadband infrastructure sections of the final rule are on pages 260-264 and 294-313. Pages 85-90 focus on digital inclusion, which is relevant and overlapping depending on community plans.

In general, the SLFRF has simplified the rules to give more flexibility to state and local governments (across all of the eligible uses, not just broadband infrastructure). The original rule focused on areas lacking reliable 25/3 Mbps service – with a big focus on the word “reliable.” But there is no mention of 25/3 in the Final Rule.

Local governments do still have to make a determination that they are building the network to solve one of the problems that SLFRF uses as a trigger to allow broadband infrastructure investments, but they do not have to get approval from Treasury or any other entity. More detail below, but the triggers include lack of access to a reliable 100/100 connection or lack of access to affordable broadband service.

Any network built with SLFRF must be designed to deliver 100 Mbps download and upload, with the ability to do only 100/20 Mbps in some situations. That is the same as in the Interim Final Rule but now networks must also support the Affordable Connectivity Program (ACP) for as long as the program exists.

Qualifying to Use SLFRF for Broadband Infrastructure

Treasury set the tone for the revisions by noting on page 261:

  • Treasury recognizes that there may be a need for improvements to broadband beyond those households and businesses with limited existing service as defined in the interim final rule.

This was a primary concern we heard from cities back in May – that the focus on served/unserved/underserved based on available broadband speeds did not adequately address the problems they faced, even with a strong caveat about reliability.

Cities may have 100 percent high-speed cable coverage but still have neighborhoods where many people are not able to access a broadband Internet connection due to challenges common to impoverished households. Treasury listened to these comments and adjusted the Rule (page 302 – emphasis added):

  • The final rule expands eligible areas for investment by requiring recipients to invest in projects designed to provide service to households and businesses with an identified need for additional broadband infrastructure investment. Recipients have flexibility to identify a need for additional broadband infrastructure investment: examples of need include lack of access to a connection that reliably meets or exceeds symmetrical 100 Mbps download and upload speeds, lack of affordable access to broadband service, or lack of reliable broadband service. Recipients are encouraged to prioritize projects that are designed to provide service to locations not currently served by a wireline connection that reliably delivers at least 100 Mbps of download speed and 20 Mbps of upload speed, as many commenters indicated that those without such service constitute hard-to-reach areas in need of subsidized broadband deployment.

Local governments need to identify areas where at least some households lack high-speed services, or lack affordable access, or lack reliable broadband Internet service. As Treasury has made very clear, not every housing unit served by a network has to meet this condition (pages 302-303 emphasis added):

  • Households and businesses with an identified need for additional broadband  infrastructure investment do not have to be the only ones in the service area served by an eligible broadband infrastructure project. Indeed, serving these households and businesses may require a holistic approach that provides service to a wider area, for example, in order to make ongoing service of certain households or businesses within the service area economical.

We believe that a good source of data that can demonstrate an affordability or other problem that justifies broadband investment is where schools have sent mobile wireless hotspots home with students. This is a data set that nearly every school district should already have.

How to Prove an Area Qualifies

Even though local governments do not have to get approval for their determination that an area qualifies for this SLFRF expenditure, Treasury provides guidance for what evidence municipalities should consider in making the determination (page 303):

  • Consistent with further guidance issued by Treasury, in determining areas for investment, recipients may choose to consider any available data, including but not limited to documentation of existing broadband internet service performance, federal and/or state collected broadband data, user speed test results, interviews with community members and business owners, reports from community organizations, and any other information they deem relevant.

And if that was not sufficiently clear, Treasury goes above and beyond to be very clear that cities should not be bullied by the occasional intimidating ISP or some other opponent of more broadband investment (page 303 still):

  • In addition, recipients may consider the actual experience of current broadband customers when making their determinations; whether there is a provider serving the area that advertises or otherwise claims to offer broadband at a given speed is not dispositive.

This is a tremendously flexible framework. The federal government is giving local governments millions of dollars and trusting them to make wise investments that focus on the most vulnerable residents that are being left out of the opportunities the Internet offers. Some 17 states still limit local Internet choice by interfering with community authority to build a network or partner with an ISP. But everywhere else, communities have no one else to blame if they do not seize this historic opportunity.

Low-Cost Requirements and Encouraged Practices

Treasury adopted stronger requirements to ensure that the public dollars spent on these networks results in networks that are more accessible by all, including those living in poverty (page 308):

  • In response to many commenters that highlighted the importance of affordability in providing meaningful access to necessary broadband infrastructure, the final rule provides additional requirements to address the affordability needs of low-income consumers in accessing broadband networks funded by SLFRF. Recipients must require the service provider for a completed broadband infrastructure investment project that provides service to households to:
    • Participate in the Federal Communications Commission’s (FCC) Affordable Connectivity Program (ACP); or
    • Otherwise provide access to a broad-based affordability program to low-income consumers in the proposed service area of the broadband infrastructure that provides benefits to households commensurate with those provided under the ACP.

Though it isn’t required, Treasury recognizes the importance of a low-cost, high-quality tier of service, and spells out key parts of it (page 309, emphasis added):

  • Additionally, recipients are encouraged to require that services provided by a broadband infrastructure project include at least one low-cost option offered without data usage caps at speeds that are sufficient for a household with multiple users to simultaneously telework and engage in remote learning. Treasury will require recipients to report speed, pricing, and any data allowance information as part of their mandatory reporting to Treasury.

Other Bits of Interest

The Treasury Department uses OECD data as supporting evidence that the United States has a problem with affordable broadband Internet access on page 87:

  • However, even in areas where broadband infrastructure exists, broadband access may be out of reach for millions of Americans because it is unaffordable, as the United States has some of the highest broadband prices in the Organisation for Economic Co-operation and Development (OECD).

Treasury urges these expenditures use fiber optic technology (pages 306-7):

  • Treasury continues to encourage recipients to prioritize investments in fiber-optic infrastructure wherever feasible, as such advanced technology enables the next generation of application solutions for all communities and is capable of delivering superior, reliable performance and is generally most efficiently scalable to meet future needs.

As with every previous iteration of these rules, Treasury encourages prioritizing community networks – cooperatives, nonprofits, and local governments (page 298):

  • Treasury continues to encourage recipients to prioritize support for broadband networks owned, operated by, or affiliated with local governments, nonprofits, and cooperatives.

Recipients of SLFRF funds have to report how they are using the funds. For broadband infrastructure expenditures, that reporting will include speed tiers, pricing, and data caps (page 309). Larger recipients report on a quarterly basis, smaller ones annually. More information on reporting guidelines here.

Additional discussion about the rule is available in the Q&A document, in this Beyond Telecom Law Blog, and CCG’s Pots and Pans.

Final note – I might be the only person who calls this the SLurF-uRF program but I encourage you to consider using that too because doing this work shouldn’t rob us of a juvenile sense of humor. Thanks for reading this far!

Editor’s Note: This piece was authored by Christopher Mitchell, director of the Institute for Local Self Reliance’s Community Broadband Network Initiative. His work focuses on helping communities ensure that the telecommunications networks upon which they depend are accountable to the community. He was honored as one of the 2012 Top 25 in Public Sector Technology by Government Technology, which honors the top “Doers, Drivers, and Dreamers” in the nation each year. This piece was originally published on MuniNetworks.org on January 13, 2022, 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 expressed in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

Broadband Breakfast is a decade-old news organization based in Washington that is building a community of interest around broadband policy and internet technology, with a particular focus on better broadband infrastructure, the politics of privacy and the regulation of social media. Learn more about Broadband Breakfast.

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Bjorn Capens: Strong Appetite for Rural Broadband Calls for Next Generation Fiber Technology

The first operator to bring fiber to a community creates a significant barrier to entry for competitors.

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The author of this Expert Opinion is Björn Capens, Nokia Fixed Networks European Vice President

In July, the Biden-Harris administration announced another $401 million in funding for high-speed Internet access in rural America. This was just the latest in a string of government initiatives aimed at helping close the US digital divide.

These initiatives have been essential for encouraging traditional broadband providers, communities and utility companies to deploy fiber to rural communities, with governments cognizant of the vital role broadband connectivity has in sustaining communities and improving socio-economic opportunities for citizens. 

Yet there is still work to do, even in countries with the most advanced connectivity options. For example, fixed broadband is missing from almost 30 percent of rural American homes, according to Pew Research. It’s similar in Europe where a recent European Commission’s Digital Divide report found that roughly 18 percent of rural citizens can only get broadband speeds of a maximum 30 Mb, a speed which struggles to cope with modern digital behaviors. 

Appetite for high-speed broadband in rural areas is strong

There’s no denying the appetite for high-speed broadband in rural areas. The permanent increase in working from home and the rise of modern agricultural and Industry 4.0 applications mean that there’s an increasingly attractive business case for rural fiber deployments – as the first operator to bring fiber to a community creates a significant barrier to entry for competitors. 

The first consideration, then, for a new rural fiber deployment is which passive optical network technology to use. Gigabit PON seems like an obvious first choice, being a mature and widely deployed technology. 

However, GPON services are a standard offering for nearly every fiber broadband operator. As PON is a shared medium with usually up to 30 users each taking a slice, it’s easy to see how a few Gigabit customers can quickly max out the network, and with the ever-increasing need for speed, it’s widely held that GPON will not be sufficient by about 2025. 

XGS-PON is an already mature technology

The alternative is to use XGS-PON, a more recent, but already mature, flavor of PON with a capacity of 10 Gigabits per second. With the greater capacity, broadband operators can generate higher revenues with more premium-tier residential services as well as lucrative business services. There’s even room for additional services to run alongside business and residential broadband. For example, the same network can carry traffic from four G and five G cells, known as mobile backhaul. That’s either a new revenue opportunity or a cost saving if the operator also runs a mobile network. 

This convergence of different services onto a single PON fiber network is starting to take off, with fiber-to-the-home networks evolving into fiber for everything, where homes, businesses, industries, smart cities, mobile cells and more are all running on the same infrastructure. This makes the business case even stronger. 

Whether choosing GPON or XGS-PON, the biggest cost contributor is the same for both: deploying fiber outside the plant. Therefore, the increased cost of XGS-PON over GPON is far outweighed by the capacity increase it brings, making XGS-PON the clear choice for a brand-new fiber deployment. XGS-PON protects this investment for longer as its higher capacity makes it harder for new entrants to offer a superior service. 

It also doesn’t need to be upgraded for many years, and when it comes to the business case for fiber, it pays to take a long-term view. Fiber optic cable has a shelf-life of 75 or more years, and even as one increases the speeds running on fiber, that cable can remain the same.  

Notwithstanding these arguments, fiber still comes at a cost, and operators need to carefully manage those costs in order to maximize returns. 

Recent advances in fiber technology allow operators to take a pragmatic approach to their rollouts. In the past, each port on a PON server blade could only deliver one technology. But Multi-PON has multiple modes: only GPON, only XGS-PON or both together. It even has a forward-looking 25G PON mode. 

This allows an operator to easily boost speeds as needed with minimal effort and additional investment. GPON could be the starting point for fiber-to-the-home services, XGS-PON could be added for business services, or even a move to 25G PON for a cluster of rural power users, like factories and modern warehouses – creating a seamless, future-proof upgrade path for operators. 

The decision not to invest in fiber presents a substantial business risk

Alternatively, there’s always the option for a broadband operator to stick with basic broadband in rural areas and not invest in fiber. But that actually presents a business risk, as any competitor that decides to deploy fiber will inevitably carve out a chunk of the customer base for themselves. 

Besides, most operators are not purely profit-driven; they too recognize that prolonging the current situation in underserved communities is not great. High-speed broadband makes areas more attractive for businesses, creating more jobs and stemming population flows from rural to urban centers. 

But rural broadband not only improves lives, but it also decreases the world’s carbon emissions both directly, compared to alternative broadband technologies, and indirectly by enabling online and remote activities that would otherwise involve transportation. These social and economic benefits of fiber are highly regarded by investors and stockholders who have corporate social responsibility high on their agendas. 

With the uber-connected urban world able to adopt every new wave of bandwidth-hungry application – think virtual reality headsets and the metaverse – rural communities are actually going backwards in comparison. The way forward is fiber and XGS-PON. 

Björn Capens is Nokia Fixed Networks European Vice President. Since 2017, Capens has been leading Nokia’s fixed networks business, headquartered in Antwerp, Belgium. He has more than 20 years of experience in the fixed broadband access industry and holds a Master’s degree in Electrical Engineering, Telecommunications, from KU Leuven. 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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Johnny Kampis: Federal Bureaucracy an Impediment to Broadband on Tribal Lands

18% of people living on Tribal lands lack broadband access, compared to 4% of residents in non-tribal areas.

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The author of this expert Opinion is Johnny Kampis, director of telecom policy for the Taxpayers Protection Alliance

A new study from the Phoenix Center finds that as the federal government pours tens of billions of dollars into shrinking the digital divide in tribal areas, much of that gap has already been eliminated.

The report, and a second from the U.S. Government Accountability Office, are more indications that regulations and economic factors that include income levels continue to hamper efforts to get broadband to all Americans.

The Infrastructure Investment and Jobs Act of 2021 allocated $45 billion toward tribal lands. This was done as part of a massive effort by the federal government to extend broadband infrastructure to unserved and underserved areas of the United States.

George Ford, chief economist at the Phoenix Center for Advanced Legal & Economic Public Policy Studies, wrote in the recent policy bulletin that while there is still plenty of work needed to be done in terms of connectivity, efforts in recent years have largely eliminated the broadband gap between tribal and non-tribal areas.

Ford examined broadband deployment around the U.S. between 2014 and 2020 using Form 477 data from the Federal Communications Commission, comparing tribal and non-tribal census tracts.

Ford points out in the bulletin that the FCC has observed several challenges for broadband deployment in tribal areas, including rugged terrain, complex permitting processes, jurisdictional issues, a higher ratio of residences to business customers, higher poverty rates, and cultural and language barriers.

Ford controlled for some of these differences in his study comparing tribal and non-tribal areas. He reports in the bulletin that the statistics suggest nearly equal treatment in high-speed internet development.

Encouraging results about availability of broadband in Tribal areas

“These results are encouraging, suggesting that broadband availability in Tribal areas is becoming closer or equal to non-Tribal areas over time, and that any broadband gap is largely the result of economic characteristics and not the disparate treatment of Tribal areas,” Ford wrote.

But he also notes that unconditioned differences show a 10-percentage point spread in availability in tribal areas, which indicates how much poverty, low population density, and red tape is harming the efforts to close the digital divide there.

“These results do not imply that broadband is ubiquitous in either Tribal or non-Tribal areas; instead, these results simply demonstrate that the difference in availability between Tribal and non-Tribal areas is shrinking and that this difference is mostly explained by a few demographic characteristics,” Ford wrote.

In a recent report, the GAO suggests that part of the problem lies with the federal bureaucracy – that “tribes have struggled to identify which federal program meets their needs and have had difficulty navigating complex application processes.”

GAO states that 18 percent of people living on tribal lands lack broadband access, compared to 4 percent of residents in non-tribal areas.

The GAO recommended that the Executive Office of the President specifically address tribal needs within a national broadband strategy and that the Department of Commerce create a framework within the American Broadband Initiative for addressing tribal issues.

“The Executive Office of the President did not agree or disagree with our recommendation but highlighted the importance of tribal engagement in developing a strategy,” the report notes.

That goes together with the GAO’s dig at the overall lack of a national broadband strategy by the Biden Administration in a June report. As the Taxpayers Protection Alliance reported, the federal auditor noted that 15 federal agencies administer more than 100 different broadband funding programs, and that despite a taxpayer investment of $44 billion from 2015 through 2020, “millions of Americans still lack broadband, and communities with limited resources may be most affected by fragmentation.”

President Biden has set a goal for universal broadband access in the U.S. by 2030. These recent reports show that the federal bureaucracy under his watch needs to do a better job of getting out of its own way.

Johnny Kampis is the director of telecom policy for the Taxpayers Protection Alliance. 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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Craig Settles: Communities to Roll Out Telehealth Integration

‘We figured out how to train people to be digital navigators [and] get customers comfortable with telehealth.’

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The author of this Expert Opinion is Craig Settles, who unites community broadband teams and healthcare stakeholders through telehealth-broadband integration initiatives.

A pacesetter among municipal broadband owners, the City of Chattanooga is giving away 1,000 free telehealth appointments that also brings broadband into low-income homes. Vistabeam, a Nebraska Wireless ISP, is bringing telehealth to rural towns through Community Empowerment Centers that increase broadband as well as improve residents’ health. 

“The Enterprise Center works hard at the intersection of technology and inequality, whether it’s using technology to work efficiency, for learning, or improving personal health,” states CEO Deb Socia. The center is partnering with residents, community organizations and the Parkridge Medical System to identify needs and bring in resources to combat high levels of diabetes, stroke, heart disease, and asthma. 

Vistabeam owner Matt Larsen says, “You can’t just lay down some fiber and routers, then call this a broadband success. Rural areas often lack the human and tech resources necessary for broadband to thrive.” So Vistabeam is designing Community Empowerment Centers to offer communities private telehealth consultation rooms, digital skills and telehealth training, full-time digital navigators and inventory rooms with shared computing devices and equipment.

These and other communities are finding that telehealth increases broadband adoption as well as improves the physical and economic health of residents. Telehealth is the “killer app” that can harness and focus broadband investments into digital inclusions advancements for urban and rural communities.  

A perfect storm for telehealth

Chattanooga’s public broadband network, through a city electric power board that offers both electricity and broadband, is an advantage to telehealth. Socia says, “EPB has a deep connection to the community, and they invest money, technology in public spaces, and energy upgrades in the homes. EPB cares about the health of our community.” (EPB, formerly known as the Electric Power Board of Chattanooga, provides broadband in the city.) Communities without public broadband may have to work harder to find large ISPs with similar levels of commitment.

Communities wanting to leverage telehealth likely will need new strategies for winning and managing grants. You can’t have telehealth without broadband, but the integration of broadband to facilitate telehealth delivery may involve a myriad of people, organizations, and resources besides the network builder. 

For years Chattanooga has had a culture of cooperation among its many civic groups. The nonprofit Orchard Knob had a preexisting collaborative, so when the telehealth opportunity came up as part of a larger “healthy community” initiative, it was it much easier to create a grant of the size that the group currently has.

The community created the Orchard Knob Collaborative, which includes Parkridge Medical Center with their 1000 telehealth appointments, the Orchard Knob Neighborhood Association, Habitat for Humanity of Greater Chattanooga Area and United Way of Greater Chattanooga. EPB contributed money, energy upgrades, and public WiFi. Green Spaces is another nonprofit and the Center provides project management plus various Tech Goes Home digital inclusion programs.

Telehealth opens the door for larger grants. “I think the anticipated grant-raising outcomes are quite specific when you’re producing social determinants of health,” Socia says. “Projects that involve telehealth are a much tougher ‘ask’ for funders and everyone else involved. But at the same time, you can leverage other additional dollars and other partners for a much better healthcare outcome.” 

Telehealth and the ‘human element’

Every state is developing a digital equity plan. How important is telehealth to the success of a digital equity plan? Quite important! But remember that telehealth deployment strategy in rural communities likely could take shape differently than urban deployment. Vistabeam’s Centers represent one approach.

Digital equity in telehealth is just one component of a giant ecosystem of social services that good societies use to help take care of people. The challenge is the need to successfully coordinate scarce resources to get maximum impact from the resources. However, in rural communities there can be a real lack of coordination between a lot of these resources.

“It makes sense to start out by focusing on getting telehealth into some smaller communities at locations where people can come in and access telehealth in an environment that develops trust and familiarity with the technology,” says Larsen. “To do that, we’re going to need a ‘human element’, facilitators such as digital navigators to plug community telehealth into the ecosystem. A lot of rural communities have trust issues with government programs.”

Using surplus office space to create customer service centers

There are plenty of large incumbents’ mobile device showrooms in communities. But these employees tend to be sales-oriented with scripted content. Vistabeam happens to have surplus office space they are using to create true customer service centers.

“We figured out how to train people to be digital navigators, we get customers comfortable with telehealth and our staff connects people with complementary social services and other resources,” says Larsen. For the last few months, Vistabeam has been promoting exclusively the FCC’s Affordable Connectivity Program of free Internet access and subsidized computing devices. There’s a complex enrollment process residents have to complete that’s confusing for many, so Vistabeam trained staff to walk people through the process, get them qualified, and connected.  

As for the potential of telehealth deployment to the home, Larsen believes the technology represents a tremendous amount of potential utility and value for both rural and urban broadband deployments. Though broadband is currently underutilized for telehealth, in large part because communities are just beginning to plan for it, the pandemic revealed a burning need for strong video streaming capacities to bridge doctors and patients.

“What’s missing is a telehealth killer app or device,” says Larsen. “I believe preventive healthcare will be the answer – technology that detects or prevents things from happening before they become big problems. This app could be a way to check vital statistics and watch for health or illness markers. Maybe we’ll see a device connected to the Internet that accesses research data to help you and your health professional with health planning.”  

Just about everybody gets sick or hurt, or they are responsible for others when those loved ones aren’t doing well. Telehealth and its many iterations are designed for people to use when they’re sick or hurt or for preventative healthcare. The universality of telehealth and its symbiotic relationship with broadband technologies give communities great potential for expanding digital inclusion. Together with the bezillion grant dollars coming out the ying yang, what we’re seeing is the perfect digital storm. 

Craig Settles conducts needs analyses, planning, and grant assessments with community stakeholders who want broadband networks and telehealth to improve economic development, healthcare, education and local government. 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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