Cities (and States) are Doing it for Themselves
Thursday, November 8, 2018
Cities (and States) are Doing it for Themselves
Remarks at New England Connect
November 8, 2018
Thank you Elin and Deb for inviting me to speak today. To be honest, I’m still a bit exhausted from election night. But I’m so glad it’s over. It felt so long - like two years! Of course, there are still a bunch of undecided races, so it’s actually not over. Sigh!
No matter who you voted for or what party you belong to, I think we can agree on one thing - access to high speed broadband is one of the most important issues in the US today. In Congressional race after Congressional race, in Maine, Vermont, Virginia, Ohio, Tennessee, Colorado, Michigan and New Mexico, just to name a few, voters said that broadband access was a top three issue, sometimes coming after health care and jobs, and other times, like in Vermont, coming in as the number one concern for voters. There’s a strong consensus that one must be connected to broadband in order to participate fully in our society, our economy and our culture.
But while the Trump Administration and Congress addressed health care and jobs in its first two years, it has done little to ensure that every American is connected to high speed broadband Internet. This is despite the core requirement of the Communications Act of 1934, enshrined in the very first section, that communication by wire and radio, with “adequate facilities at reasonable charges” be made available “to all people of the United States, without discrimination on the basis of race, color, religion, national origin or sex.”
FCC Chairman Ajit Pai said on his very first day in that role that closing the digital divide would be, in his words, one of his “core priorities.” But I’d argue that rather than closing the digital divide, his FCC has made it wider. The FCC repealed the 2015 net neutrality rules and at the same time, abdicated its oversight of the broadband market. Pai has a proposal that would gut the Lifeline program, leaving low income Americans without the subsidy they need to afford broadband. The E-Rate program that provides broadband to schools and libraries is being undermined in more subtle ways, for instance, by the FCC and the Universal Service Administrative Company sowing doubt about future funding for those schools and libraries that want to build their own, far more cost effective networks. The FCC just placed its foot on the neck of states and localities that want to determine how the infrastructure for the next generation of wireless technologies - known as 5G - should be deployed.The result? 39% of rural residents still lack broadband, prices remain high and nearly three quarters of the country has access to no more than 2 broadband providers.
I could go on, but believe it or not, the purpose of my talk is not to dwell on the negative. Instead, it’s to draw a contrast between what’s happening at the federal level, where I focus much of my energy, and what’s happening at the state and local levels, where many of you dwell. I have no doubt that the most important work to ensure that all Americans have access to affordable, high speed broadband is happening in local communities like Chicopee and Taunton, Massachusetts, Longmont Colorado, Imperial County California, Fairlawn Ohio and Kent County Maryland. The most vibrant efforts to ensure that where there is broadband, residents adopt the service and are well versed in using it are in cities like Boston, Austin, Louisville, Kansas City and San Jose. And 34 states across the nation worked to fill the gap in broadband oversight since the beginning of the year.
Let’s talk first about community broadband. It was the issue I most loved working on when I was at the FCC. It was exciting to travel across the country and see once-struggling industrial, tobacco and farming towns re-invent themselves and their economies with high speed Internet.
Everybody knows of the great successes in places like Chattanooga, Tennessee, where the Electric Power Board, or EPB, just announced that it had surpassed 100,000 customers, and Lafayette, Louisiana, which announced a few months months ago that it was providing 10 Gigabit symmetrical service. But new, lesser known systems are popping up all over the country, like Fairlawn Gig outside of Akron Ohio. I had the the privilege of seeing Fairlawn Gig’s facilities last September. Thanks to the leadership of Mayor William Roth and Deputy Director of Public Service Ernie Staten, every one of Fairlawn’s 7500 residents have access to gigabit symmetrical broadband for $80 a month or 100 Mbps for just $40 a month. And over half of the households in Fairlawn subscribe! By comparison, I pay $80 a month for 50 Mbps, 20 times less than what the citizens of Fairlawn get for the same price.
How does Fairlawn Gig do it? First and foremost, return on investment was not a driving factor in its decision to build and price the service. Fairlawn Gig proudly calls itself “A Municipal Broadband Utility,” even though, unlike Chattanooga EPB and Lafayette, Fairlawn Gig was not born of the town’s electric or water service. Like most Americans, Fairlawn Gig considers broadband to be “essential infrastructure.” Only in Washington, DC, where incumbent cable and broadband companies have a lobbyist for every Congressional office, is the idea that broadband might be considered as critical to daily living as electricity and water an outrage.
Second, Fairlawn Gig chose not to be a subscription TV provider. This was a wise decision. Programming costs are behind recent cable and satellite price hikes of between 3-4%, which doesn’t include new add-on fees like “broadcast TV fees” and “sports network fees.” Instead, Fairlawn Gig has a “streaming guide” that explains the various options for online subscription programming and explains how to access and use them. They also have in-person tutorials for those who prefer a hands-on experience.
Third, Fairlawn Gig invested wisely. It took $10.1 million out of its general fund without payback requirements, and didn’t levy either taxes or assessments on its residents.
Right next door in Massachusetts, Taunton Light Plant is rapidly expanding its residential broadband service to the 57,000 residents of that city. TLP began providing fiber connectivity to businesses in 1997 and then to one apartment building, a local school and hospitals. But it recently expanded to 11 neighborhoods, with 24 more having applied for connectivity and 65 others expressing interest. Like Fairlawn Gig, it doesn’t provide subscription programming, opting instead to educate its subscribers about streaming options. This allows it to charge just $34.95 a month for 50 Mbps symmetrical service and $69.95 for 1 gig.
Not every community has the capacity to provide residential service right away, instead choosing to start by connecting anchor institutions like schools, government buildings, universities and hospitals. An exciting example of this is Imperial County in southeastern California. Faced with limited access to broadband infrastructure, the county formed the Imperial Valley Telecommunications Authority, which entered into an agreement with the local power and water district to use shared fiber optic cable between communities, along with poles, towers and other resources. Today, ITVA provides connectivity to 120 sites for 30 community anchor institutions in 12 major communities, using a combination of fiber and both unlicensed and Educational Broadband Service spectrum.
I’d be remiss if I failed to mention that communities in 19 states are still barred from building or expanding their broadband networks, laws that were passed with the urging of the largest incumbent cable and broadband companies. I’m hopeful that a Democratic House and a Senate with rural Senators displeased with the lack of affordable broadband options might see fit to pass a law pre-empting these anticompetitive state initiatives.
Of course, it’s not enough just to make broadband available to your communities. 20% of Americans still lack broadband access, with half of those choosing not to adopt such service even though it’s available to them. There are a variety of reasons why people don’t adopt broadband, including cost, lack of digital literacy and plain old trust.
Under the Obama Administration, the federal government was very active in working with communities to promote digital inclusion. The 2009 stimulus bill set aside $250 million dollars to fund community-based digital inclusion projects. The projects were selected and funded by the National Telecommunications and Information Administration, which is part of the Department of Commerce. In addition, as required by the 2016 Lifeline Reform Order, the FCC published a digital inclusion plan, which among other things, made a series of recommendations for increasing education and outreach, fostering new partnerships and creating policies to promote broadband adoption and literacy.
Over the past two years, there hasn’t been one penny nor man hour spent in Washington, DC on digital inclusion, leaving it up to cities and towns to fill the gap on their own.
When I was at the FCC, I visited public housing in Kansas City, where Google Fiber was rolling out free gigabit service. The Google representatives told me that when they first went door to door offering this service, nobody would take it. “Nobody gives away things for free” was one response. So was “is Google going to spy on me? and “is the government going to spy on me?” It wasn’t until Google hired community members to give away this service that residents started to embrace it.
Kansas City continues to be one of the nationwide leaders in digital inclusion. As John Horrigan notes in a recent Benton Foundation report on community-driven digital skills initiatives, the city has formed the Kansas City Coalition for Digital Inclusion, which has broad participation from schools, the Kansas City public library, local government, and the growing tech community. Among other things, the coalition gives low cost computers to those in need, connects low income residents to discounted broadband and teaches digital literacy.
But Kansas City goes further. The city’s 2015 Digital Inclusion Report explicitly called for local businesses to engage with digital inclusion initiatives to increase the city’s workforce skills. Kansas City also puts its money where its mouth is, by having a dedicated fund that invests in a range of digital inclusion projects.
Louisville, Kentucky also has an explicit digital inclusion plan that places a priority on preparing people for jobs where digital skills are required. Louisville partners with the start-up community, the Louisville Free Library and the federal government’s ConnectHome USA initiative to promote digital skills, digital literacy and online access in low-income housing. These initiatives are done with little public funding and a lot of in-kind donations. As a result, Louisville is trying to build a digital inclusion fund similar to Kansas City’s, to be housed at the Community Foundation of Louisville.
Another city the National Digital Inclusion Alliance has called a “Digital Inclusion Trailblazer” is nearby Boston. Boston is expanding it’s “Wicked WiFi” and its fiber network to all Boston Public Library branches and public schools, and is providing ongoing digital skills training and tools to low income Bostonians. Boston also has a small Digital Equity Fund that gives grants to nonprofits that help people learn how to use the Internet safely and securely, teach people how to use digital tools; and help make broadband more affordable.
Unfortunately, the list of Digital Inclusion Trailblazers is much smaller than it should to be - just 16 cities, including only one, Wilson, NC that could be considered even partially rural. Whether or not communities are building their own broadband networks, ensuring that residents can afford, and know how to, use those networks must be part of their mission.
Net Neutrality/Re-asserting Authority
No speech of mine would be complete if I didn’t talk about net neutrality. As most of you know, net neutrality is the principle that those companies providing the on-ramp to the Internet should not favor or disfavor any content or services that ride over those pipes. In 2015, the Wheeler FCC passed the strongest ever net neutrality rules, prohibiting broadband Internet access providers from blocking, throttling or otherwise discriminating in favor or against certain Internet content and services, including fast lanes for pay.
In December 2017, the Pai FCC repealed those rules, and, more importantly, abdicated the agency’s role overseeing the broadband market. The 2015 rules gave the FCC the power to, among other things, protect the privacy and data of broadband users, promote competition and protect broadband customers from fraudulent billing practices and price gouging. The Pai FCC purported to give this power to the Federal Trade Commission. But the FTC lacks the technical and legal tools to oversee broadband networks. The FTC only has the legal power to punish broadband companies that tell their customers one thing and then do another. So if a broadband provider tells its customers that it reserves the right to block, throttle or otherwise discriminate and then does so, there’s nothing that the FTC can do.
It didn’t take long for both states and cities to fill the gap left by the FCC. As I mentioned before, 34 states acted - either by introducing or passing net neutrality legislation or by adopting executive orders that require any broadband provider doing business with the state or locality to abide by the 2015 net neutrality rules. These actions had the effect of reversing the 20 year tide of deregulation, urged by incumbent broadband companies, to stript the states of authority to regulate broadband. The companies’ rationale for this deregulation? The federal government has authority to regulate broadband, so the states don’t need to. You know what that’s called? A shell game.
A number of these net neutrality bills passed - in Vermont, Oregon, Washington State and California. The California bill is the strongest, as it codifies the entire 2015 Open Internet Order, including protecting the ability of content delivery networks and other transport providers to interconnect with incumbent broadband providers.
The Department of Justice has sued California, and the broadband trade associations have sued Vermont. Their main arguments are that the FCC explicitly pre-empted the states from passing net neutrality laws of their own and that broadband Internet access is inherently an interstate service regulated by the federal government. The Vermont suit goes even farther, alleging that the state cannot set behavioral conditions on the ISPs with which the state does business.
These arguments are flawed. While the FCC purported to pre-empt the states from adopting net neutrality protections of their own, an agency cannot abdicate its role protecting consumers and competition and at the same time tell the states they cannot do so. Regulatory authority and pre-emption authority go hand in hand. Moreover, the Communications Act recognizes that communications networks have both interstate and intrastate characteristics. Indeed, telephone service is regulated both by states and the federal government, and cable service is a mix of state, local and federal oversight.
This preemption argument is also teed up in the challenge to the 2017 net neutrality repeal order, which is being heard in the US Court of Appeals for the District of Columbia Circuit. 22 States Attorneys General and the Attorney General for the District of Columbia have challenged the FCC’s attempted preemption, and New England is well represented, with the AGs of Connecticut, Maine, Massachusetts, Rhode Island and Vermont participating.
The American people owe a debt of gratitude to the communities and states that are working to ensure universal and affordable access to an open broadband Internet. But as great as this work has been, it cannot substitute fully for the resources, expertise and oversight of the federal government.
I’ve already mentioned some of the things we need from Washington - a law preempting state restrictions on community broadband and reinstatement of FCC authority over broadband. Maps that tell you where broadband is actually deployed and at what price would also help. But most of all, we need a new National Broadband Plan - and while first one is great, it’s more that 8 years old, and a refresh is necessary. Among other things, that plan must come with a commitment of federal resources adequate to fund both the infrastructure needed to serve those communities without broadband and the digital inclusion programs to make sure that these networks are utilized.
Stay tuned for more on that in 2019. Thank you.
Gigi B. Sohn is a Distinguished Fellow, Georgetown Law Institute for Technology Law & Policy and Benton Senior Fellow and Public Advocate. She is one of the nation’s leading public advocates for open, affordable and democratic communications networks. For nearly thirty years, she has worked across the country to defend and preserve the fundamental competition and innovation policies that have made broadband Internet access more ubiquitous, competitive, affordable, open and protective of user privacy.
Benton, a non-profit, operating foundation, believes that communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities to bridge our divides. Our goal is to bring open, affordable, high-capacity broadband to all people in the U.S. to ensure a thriving democracy.
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