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NTIA’s Effort to Dispense Broadband Funds to Municipalities Is Not Without Obstacles

The NTIA’s notice of funding opportunity stops short of explicitly endorsing municipal broadband as the preferred model.

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Photo of Alan Davidson (left) and Drew Clark from Mountain Connect

WASHINGTON, June 9, 2022 – Though the head of the National Telecommunications and Information Administration says he looks to “pressure” states with restrictive laws on municipal broadband builds to use infrastructure money for that end, some aren’t convinced that the federal government can get that deep into state affairs.

The “NTIA lacks the authority to require states that have adopted laws restricting municipal broadband systems to waive or otherwise disregard these state restrictions,” Randolph May, president of the Free State Foundation, told Broadband Breakfast.

“Perhaps NTIA can encourage (strongly or otherwise) states to do so, but it can’t condition their receipt of BEAD grants on states’ refusal to do so,” May added.

The comments come after NTIA administrator Alan Davidson said during Broadband Breakfast event in April that his office is looking to pressure some states to work around their laws to allow the money to go toward municipal broadband builds.

NTIA is  entrusted with handing out to the states $42.5 billion from the Infrastructure, Investment and Jobs Act.

Davidson added during a fireside chat with Broadband Breakfast Editor and Publisher Drew Clark at the Mountain Connect conference in May that the success of the Broadband Equity, Access and Deployment program will depend on getting “every state and territory on board.”

“I do think there will be a lot of deep directions to states,” he said about how the NTIA will administer the BEAD program.

BEAD NOFO bars states from rejecting municipalities

On municipal broadband, Davidson said that the BEAD’s notice of funding opportunity is explicit in that it does not allow eligible entities to not consider public provider types out of hand.

“Eligible Entities may not exclude cooperatives, nonprofit organizations, public-private partnerships, private companies, public or private utilities, public utility districts, or local governments (‘potential providers’) from eligibility for grant funds,” the NOFO reads.

“We are doing all we can to lean into the idea that we believe there is going to be a variety of approaches that communities play a huge role here,” Davidson said in the exchange with Clark. “You know states have their laws, we are going to try and do all we can under the law to pressure states, and to make sure that states are transparent where they are not able to meet them.”

The BEAD NOFO explicitly points to municipal broadband as broadband providers that should be utilized – asserting that eligible entities need to demonstrate the steps they have taken to “ensure the participation of non-traditional broadband providers,” and listing municipalities as one such entity.

The view on municipal broadband

Depending upon the party in the White House, municipal broadband is often considered a best practice by the Federal Communications Commission. Yet it has been outlawed or circumscribed in more than a dozen states.

Although the NOFO stops short of explicitly endorsing municipal broadband as a preferred model – it merely says that eligible entities cannot reject municipal builds without consideration – earlier versions of White House statements on broadband infrastructure explicitly favored granting funds to municipal entities.

The Telecommunications Act of 1996 was enacted “to let any communications business compete in any market against any other.” In doing so, the act mandated that “No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.”

The FCC understood this clause to include state subdivisions within the operational definition of the word, “entity.”

In Nixon v. Missouri Municipal League, however, the Supreme Court of the United States ruled in 2004 against a municipal broadband service that argued that Missouri’s attempts to stifle its work violated the Telecommunications Act of 1996.

The court held that a state’s own subdivisions did not constitute the “entities” protected in the Telecommunications Act. This decision disregarded the FCC’s framework and opened the door to challenges to municipal broadband efforts. Missouri was not the last state to restrict municipal broadband.

Great variety of municipal broadband restrictions

Not all states’ legislation designed to curb municipal networks looks the same, however. States with such legislation exist on a sliding scale.

Some states, such as Nebraska, ban public entities outright from providing broadband services on a retail or wholesale level. South Carolina presents so many obstacles to municipal broadband that such efforts are usually far too expensive or unwieldy to pursue.

The legislators that push these bans often argue that private internet providers are better equipped to provide these services to consumers, and that municipal efforts are a waste of taxpayer money. Advocates for this type of legislation also argue that municipal networks are inherently anticompetitive – as municipalities would compete with the private industry in addition to regulating it – in effect serving as both referee and player in the space.

A limited rollback of restrictions

Though some states have rolled back some restrictions in recent years – namely Arkansas and Washington – municipal efforts are still outright banned or heavily discouraged in 17 states.

In Arkansas, the shift appeared to come as a response to the Covid-19 pandemic. Senate Bill 74 was sponsored by Republican Arkansas State Sen. Ricky Hill and was signed into law by Republican Gov. Asa Hutchinson in February of 2021.

The bill recognized broadband as “necessities” and that citizens who lack broadband “also lack access to healthcare services, education services, and other essential services.” The bill amended the Telecommunication Regulatory Reform Act of 2013 to allow municipal entities to provide broadband services to consumers.

Data gathered prior to the pandemic and published in the International Journal of Digital Economy, Data Sciences, and New Media argues that restrictions on state and municipal broadband decreases broadband penetration by 1-2 percentage points and 3 percentage points, respectively.

“These results make a strong argument that state broadband policies are having a measurable impact on broadband diffusion across the U.S., including in rural areas,” the study’s authors concluded.

Digital Inclusion

FCC Chairwoman Jessica Rosenworcel Emphasizes 100 Percent Broadband Adoption

‘It’s about making sure wireless connections are available in 100 percent of rural America,’ said the chairwoman.

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Photo of Kelley Dunne, CEO of AmeriCrew, leading panel on workforce issues at the Rural Wireless Infrastructure Summit by Drew Clark

PARK CITY, Utah, June 28, 2022 – The Federal Communications Commission is making progress towards bringing “affordable, reliable, high-speed broadband to 100 percent of the country,” Chairwoman Jessica Rosenworcel said at the Rural Wireless Infrastructure Summit here on Tuesday.

Rosenworcel pointed to the $65 billion Infrastructure Investment and Jobs Act now being deployed across the country, with a particular focus on unconnected rural and tribal areas.

Although the Commerce Department’s National Telecommunications and Information Administration will take the lead with these funds, the FCC’s new broadband coverage maps will be important in implementing state digital equity plans.

In her remarks, Rosenworcel also discussed how the upcoming 2.5 GigaHertz spectrum auction will involve licensing spectrum primarily to rural areas.

At the July FCC open meeting, said Rosenworcel, the agency is scheduled to establish a new program to help enhance wireless competition. It is called the Enhanced Competition Incentive Program.

The program aims to build incentives for existing carriers to build opportunities for smaller carriers and tribal nations through leasing or partitioning spectrum. Existing carriers will be rewarded with longer license terms, extensions on build-out obligations, and more flexibility in construction requirements.

“It’s about making sure wireless connections are available in 100 percent of rural America,” she said.

She also indicated her commitment to work with Congress to fund the FCC’s “rip and replace” program to reimburse many rural operators’ transitions from Chinese-manufactured telecommunications equipment. She also touted the role that open radio access networks can plan in more secure telecommunications infrastructure.

In other news at the conference, FCC Commissioner Brendan Carr addressed the role of funding broadband operations in rural America, the challenges of workforce training, and ensuring that rural carriers have access to high-cost universal service support.

In a session moderated by AmeriCrew CEO Kelley Dunne, panelists from the U.S. Labor Department, the Wireless Infrastructure Association and Texas A&M Extension Education Services addressed the need to offer a vocational career path for individuals for whom a four-year degree may not be the right choice. AmeriCrew helps U.S. military veterans obtain careers in building fiber, wireless and electric vehicle charging infrastructure.

Broadband Breakfast Editor and Publisher Drew Clark contributed to this report.

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5G

5G Will Help Enhance Environment Protection and Sustainability, Conference Hears

The technology has already been used by companies to monitor and make more efficient systems to reduce emissions.

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Photo of Bourhan Yassin, CEO of Rainforest Connection

WASHINGTON, June 28, 2022 – Because of its facilitation of real-time monitoring and more efficient use of systems, 5G technology will help tackle climate change and beef up environmental sustainability, an Information Technology and Innovation Foundation event heard Tuesday.

5G technology’s ubiquitous connectivity and lower latency enables climate technology that decarbonizes manufacturing plants, enables rainforest monitoring, and limits greenhouse gas emissions from transportation.

5G also enables real-time traffic control and monitoring that can help minimize carbon footprint, said John Hunter from T-Mobile, which has a large 5G network thanks in part to its merger with Sprint.

Finnish 5G equipment supplier Nokia has invested in smart manufacturing relying on the speed of 5G in its plants, which it said has resulted in a 10 to 20 percent carbon dioxide reduction and a 30 percent productivity improvement with 50 percent reduction in product defects.

Non-profit tech startup Rainforest Connection has used 5G technology to implant sensitive microphones into endangered rainforests in over 22 countries around the world. These microphones pick up on sounds in the forest and transmit them in real time to personnel on the ground.

These highly sensitive machines are camouflaged in trees and can pick up sounds of gunfire from poaching and chainsaws from illegal logging activity from miles away. The technology has proven to be significant in rainforest conservation and will enable researchers and scientists to find innovative solutions to help endangered species as they study the audio.

“By being able to integrate technologies such as 5G, we can accelerate that process… to achieve the mission [of mitigating climate change effects] sooner than we expected,” said Rainforest Connection CEO Bourhan Yassin.

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Spectrum

Make More Unlicensed Spectrum Available for Increasing Demand for Wi-Fi Use: Panelists

Conference hears the FCC should seek spectrum bands to open up for unlicensed use.

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Photo of Maura Corbett, Alan Inouye, Kathleen Burke, Deb Collier (left to right)

WASHINGTON, June 27, 2022 – Experts said at a WiFiForward event last week that there should be more carve-outs for unlicensed spectrum to tackle growing demand for connections and relieve congestion on existing frequencies.

Unlicensed spectrum is a set of frequencies that are not restricted to specific entities and may be used by nearly any device. Wi-Fi devices are most commonly found on unlicensed spectrum frequencies.

“We need a lot more [spectrum],” said Alan Inouye from the American Library Association at the event on June 21. New Wi-Fi devices and a growing number of consumers is driving up the demand for unlicensed spectrum, she said.

Kathleen Burke from internet advocacy group Public Knowledge added that, “[Unlicensed Spectrum] plays a critical role in allowing us to have innovative technology that advances our telecommunications opportunities while at the same time providing affordable opportunities to connect.”

Because spectrum is a finite resource, Burke suggested exploring using the 7 Ghz band to expand the spectrum frequencies.

“Do inventory,” said Burke, “and find out what the next bands are based on actual data about what is occupying the current bands and what is available out there today.”

Deb Collier from Citizens Against Government Waste suggested that the Federal Communication Commission lengthen its auction authority to auction out specific spectrum frequencies and provide more space in bands for unlicensed use.

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