Although republicans and democrats often agree that broadband service, particularly in rural areas, needs upgrading, they can’t seem to agree on what constitutes improvement. A hearing earlier this month in Washington D.C. brought this conceptual digital divide into focus.
Silicon Vally representative Anna Eschoo (D – Santa Clara) introduced a bill in January – house resolution 4818 – that would preempt state-level restrictions on municipal broadband. It was discussed – not formally considered, just discussed – during a general broadband hearing held by a house of representatives sub-committee on communications and technology.
According to a story in The Hill by Maya Lora, Eshoo defended her bill against an attack made by the chair of the committee, representative Marsha Blackburn (R – Tennessee). She claimed Eshoo’s bill would “undo much of the progress that is being made across the country”. It’s unclear exactly what progress Blackburn was referring to, or how municipal broadband projects would undo it, but Eschoo was absolutely clear about how she saw it…
Eshoo said state legislatures are “screwing” local communities that want to invest in their own networks. She said many Americans, even those in some parts of Silicon Valley — the center of the country’s tech industry, have trouble accessing broadband.
As do residents in Blackburn’s state, particularly those who live just outside Chattanooga, Tennesse, which has a municipal fiber to the home system. It can’t expand beyond its current boundaries because Tennessee state law prohibits it. The city convinced the Obama administration’s Federal Communications Commission to preempt that law, but to no avail. A federal appeals court said congress never gave the FCC the authority to preempt state control over local governments.
Although Eshoo’s bill would solve that problem as far as many municipal broadband advocates are concerned, federal preemption is the wrong approach. It’s a double edged sword and, with republicans wielding it, it’s likely to come down on muni broadband systems, rather than on state legislatures that restrict them. It’s best not to pull it out at all.
The federal government shut down is an opportunity to take stock of some of the broadband legislation and spending initiatives put on the table in the federal capital during the past couple of weeks.
Federal Communications Commission president Ajit Pai is circulating a proposal to direct what he says is an extra $500 million towards small rural carriers and cooperatives and “put in place strong new rules to prevent abuse”. It would come from an existing universal service program – whether it’s really new money or just a rebranding is unclear.
In what’s become an annual ritual, representative Anna Eshoo (D – Silicon Valley) proposed a dig once bill – HR 4800 – for federal highway projects. As in the past, it has bipartisan support. There’s no reason to think it’ll get any further than past efforts, although there’s no reason to think it won’t either. She also introduced a bill – HR 4814 – that would make it unmistakably clear that states can’t restrict or ban municipal broadband service, in effect reinstating an FCC order that was thrown out by a federal appeals court. Her co-authors are all democrats, which means it’s not going anywhere in the republican-controlled house of representatives.
Republicans have their own ideas about promoting broadband development. Besides Marsha Blackburn’s (R – Tennessee) “internet openness” measure, republican representatives introduced a flurry of bills (i.e. binding) and resolutions (“sense of the house”) that are generally aimed at speeding up broadband infrastructure deployment, including several that preempt local and state authority. These include…
- House of representative bill (HR) 4817, Billy Long (R – Missouri) – funds Internet exchanges in communities without one.
- House resolution 687, Gus Bilirakis (R – Florida) – says state and local broadband taxes and permit requirements should match federal ones.
- House resolution 689, Richard Hudson (R – North Carolina) – directs federal subsidies to states that have streamlined permit requirements for small cells.
- House resolution 690, Leonard Lance (R – New Jersey) – limits federal subsidies to one project in any given area.
- House resolution 691, Bob Latta (R – Ohio) – calls for federal spending to be “technologically neutral”, which is a code phrase meaning “give it to wireless companies, the bigger the better”.
- House resolution 701, Bill Flores (R – Texas) – limits federal environmental and historical reviews for broadband projects.
And then there’s president Donald Trump’s promised, but still unseen, yuge infrastructure spending program. It’s supposed to include broadband, but statements made so far indicate a preference for privately funded wireless projects.
There are aspects of broadband policy that are getting bipartisan support in the U.S. congress. Not anything to do with privacy rules or network neutrality or common carrier status for broadband, of course. But there are common views regarding some of the nitty gritty details of broadband infrastructure deployment.
A house of representatives sub-committee that deals with communications and technology issues looked kindly on two draft bills, both of which are largely revivals of proposals that didn’t make it out of congress last year. One is backed by the sub-committee chair, Marsha Blackburn (R – Tennessee), and the other by Silicon Valley representative Anna Eshoo (D – Palo Alto).
Blackburn wants to make it easier to build telecommunications infrastructure on federal property and particularly by…
1) creating an inventory of federal assets that can be used to attach or install broadband infrastructure;
2) requiring all landholding agencies to use common templates when leasing space for wireless broadband attachments; and
3) streamlining processes for communications facilities location applications at the Department of Interior and Forest Service.
Eshoo is back with dig once legislation that would require the installation of communications conduit in federally-funded highway construction projects. There was a similar degree of cross-aisle cooperation about this time last year, with Eschoo’s language getting rolled into a bill that also included much of what Blackburn is pushing, but the dig once provisions were subsequently dropped. Not that it made much difference, since gridlock at the U.S. capitol eventually killed the whole package.
Another broadband policy blast from the past is also making the rounds at the U.S. senate, but this one is only backed by democrats. Six blue state senators, led by Cory Booker (D – New Jersey) and not counting a Californian among them, floated a draft bill that would prevent state governments from “prohibiting or substantially inhibiting” cities or counties or other public provider from getting into the telecoms business. It would do legislatively what the Federal Communications Commission was blocked by a court from doing administratively, when it tried to preempt municipal broadband restrictions in North Carolina and Tennessee.
As it happens, the Tennessee case also caught Blackburn’s attention at the time. She proposed a bill that would have done the exact opposite and definitively prevented the federal government from involving itself in state-level muni broadband policy. You don’t need a crystal ball to know what would happen to Booker’s bill in the extremely unlikely event that it ever escapes the senate and lands in Blackburn’s committee.
With two weeks to go before the U.S. congress takes a pre-election break, progress on broadband-related bills appears to be as bogged down as it was in the California legislature’s recently concluded session. That’s not stopping Silicon Valley representative Anna Eshoo from throwing another community broadband bill into the hopper, though.
House resolution 6013 would, in effect, overturn a federal appeals court ruling that said the Federal Communications Commission can’t preempt a state’s ability to restrict municipal broadband projects. The judges decided that congress never gave the FCC unmistakably clear authority to override a state’s traditional power over local – subsidiary – governments. So Eshoo’s draft bill attempts to be unmistakably clear…
No State statute, regulation, or other State legal requirement may prohibit or have the effect of prohibiting any public provider from providing, to any person or any public or private entity, advanced telecommunications capability or any service that utilizes the advanced telecommunications capability provided by such provider.
As I read it, though, the bill runs into a problem when it defines “public provider” as…
A State or political subdivision thereof, any agency, authority, or instrumentality of a State or political subdivision thereof, or an Indian tribe…that provides advanced telecommunications capability, or any service that utilizes such advanced telecommunications capability, to any person or public or private entity.
That’s very broad language, and will either kill the bill completely or be severely trimmed back. It’s one thing to say that a state can’t keep a municipal broadband utility from serving another, nearby city. It’s quite another to say, for example, that the coastal commission’s IT department can build a fiber to the home system on its own whim.
The bill isn’t destined to make it into law. It’s a policy statement by Eshoo, who is up for reelection in November, as was her earlier bill to impose dig once obligations on federal highway projects. That bill is in deep freeze now, but it succeeded in crafting language that found its way into other proposed laws. Congress hasn’t passed any of those bills yet, but there’s still ample time left on the clock.
Easier access on the horizon.
The U.S. house of representative’s communications and technology subcommittee approved a package of broadband development measures on Wednesday, aimed at making it easier to use federal property to build infrastructure and publish more information about existing facilities. The bill includes dig once language developed by Silicon Valley congresswoman Anna Eshoo. As currently drafted, the bill would establish…
- An inventory of federal broadband assets, and any broadband asset information voluntarily provided by state or local governments.
- Better tracking of applications to build communications facilities on federal property, and streamlining applications and environmental reviews, particularly for land controlled by the defence department, interior department and the forest service.
- Requirement to include broadband conduit in federal highway projects.
- Master contracts for placing wireless facilities on federal property.
- A pole, conduit and right of way database, including locations, rates and terms, managed by the FCC.
The database language is pretty comprehensive…
(1) Each utility that owns or controls a pole, duct, conduit, or right-of-way on which a pole attachment is placed shall submit to the [Federal Communications] Commission an annual report that contains the location of each such pole, duct, conduit, or right-of-way.
(2) The Commission shall maintain a database that contains the information submitted under paragraph (1) and make such database available to any cable television system, provider of telecommunications service, or other entity that constructs or operates communications facilities…or provides communications service.
So far, the proposal has enjoyed bipartisan support. Its next stop is the house energy and commerce committee, where its prospects look good. It’s a technocratic bill, so it’s not likely to generate much partisan angst so long as industry lobbyists stay on board and there’s no attempt to politicise it by introducing more controversial measures, such as trying to repeal common carrier rules for broadband providers or extending those rules to include rate regulation.
“Dig once” requirements for federal highway projects might not have made it into a recent transportation bill, but the U.S. house of representative’s communications subcommittee will vote tomorrow on a bigger package of broadband development measures that includes it. According to a story in Broadband and Cable, the package also includes common deal terms, greater access to poles, a federal broadband asset inventory, and streamlined permits and environmental clearances. The details of the bill aren’t available right now, but you can find links to the proposed bills that led to it here.
Broadband conduit won’t be getting a fast track into federal highway projects. A bill sponsored by Silicon Valley congresswoman Anna Eshoo would require broadband considerations, and conduit in particular, be included in the planning that states do for federally funded highway construction.
The easy way to get it done would have been to include the language in this years’ highway funding bill, which is a must pass piece of legislation. Eschoo tried to do that, but was rebuffed. So now it has go back into the house of representatives’ labyrinth of committees, where it has twice died before.
This time around however, there’s more reason to be optimistic. According to the Morning Consult newsletter all of the FCC’s commissioners – democrat and republican – are behind the bill, as are key industry players…
Will Rinehart, director of technology and innovation policy at the American Action Forum, said industry stakeholders and advocates all support Eshoo’s ‘Dig Once’ legislation. “I don’t think there’s a battle in this,” Rinehart said in an interview. “I think everyone generally agrees on what needs to happen”…
The private sector and think tanks in the policy space are also fans of the bill. The National Cable and Telecommunications Association, AT&T Inc., Verizon Communications, the Consumer Technology Association, the Information Technology and Innovation Foundation, and Tech Freedom have all released statements supporting Eshoo’s legislation.
According to Morning Consult, Eshoo’s bill has to be approved by both the house’s transportation and infrastructure committee and the energy and commerce committee, which inevitably includes detours through sub-committees. And that’s just to get it to the house floor, where it would have to be approved and then, potentially, sent through the same legislative gauntlet in the senate. Since no one seems to be in any rush, it could be this time next year before we know its fate.
It’s easier to dig first, pave second.
Silicon Valley congresswoman Anna Eshoo is taking a third try at baking dig once requirements into federally funded transportation projects. She’s introduced a bill in the house of representatives that would require states to evaluate the need for broadband conduit as part of planning road projects…
If the evaluation reveals an anticipated need in the next 15 years for broadband conduit beneath hard surfaces to be constructed by the project, the conduit shall be installed under the hard surfaces as part of the covered highway construction project…
The Secretary shall ensure with respect to a covered highway construction project that an appropriate number of broadband conduits as determined by the Administrator of the National Telecommunications and Information Administration, are installed along such highway to accommodate multiple broadband providers, with consideration given to the availability of existing conduits…
The Secretary shall ensure that any requesting broadband provider has access to each broadband conduit installed pursuant to this section, on a competitively neutral and nondiscriminatory basis, for a charge not to exceed a cost-based rate.
It’s not an iron-clad guarantee that conduit will actually be installed during federally financed road construction. There are several specific exceptions and a general loophole for “consideration of other relevant factors”. But it turns the tables and creates a presumption that broadband conduit is an integral part of highway construction. Given that most transportation planners either consider broadband infrastructure to be someone else’s problem or hesitate to include it on their own initiative, it would be a big step forward if it’s approved.
Whether that happens or not is up to congress. Similar bills that Eshoo introduced in 2009 and 2011 died quiet deaths in committees. As a democrat, she’s in the minority in the house, so she’s signed up an Oregon republican, Greg Walden as a co-sponsor. He’s the chair – and Eshoo is the ranking democrat – of the communications and technology subcommittee, so at least it’s off to a good start.