Did Some Consensus Break Out at a House Broadband Hearing?
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Round-Up for the Week of January 29 - February 2, 2018
On Tuesday, January 30, the House Commerce Committee’s Subcommittee on Communications and Technology convened a hearing on broadband deployment in the US entitled Closing the Digital Divide: Broadband Infrastructure Solutions. The aim of the hearing was to discuss twenty-five resolutions and bills that address federal permitting, siting, and permissions to access rights-of-way, which some stakeholders identify as barriers to investment and broadband infrastructure deployment. True to recent form in DC, there were contentious moments at the start of the event. But, as naïve as this sounds, there were glimmers of consensus in the discussion as well.
Too Many Bills?
In her openning remarks, Subcommittee Chairman Marsha Blackburn (R-TN) said, "We wanted to have a very inclusive hearing today to discuss all of the ideas from Subcommittee members on both sides of the aisle to promote broadband infrastructure deployment with a goal of closing the digital divide. Whether you agree or disagree with any individual idea, it is so important that we get the conversation started. And we have plenty to talk about, with 25 bills introduced in time to be part of our hearing today. I very much appreciate all of the thoughtful proposals and look forward to seeing many of them progress in the coming weeks."
Right off the bat, Democrats were skeptical that the 30+ Members of the Subcommittee and the seven witnesses could have a productive discussion about 25 pieces of legislation in one hearing. Ranking Committee Member Mike Doyle (D-PA) mentioned it in his openning remarks as did full House Commerce Committee Ranking Member Frank Pallone (D-NJ), saying
I appreciate Republicans scheduling a hearing on broadband deployment and including some Democratic proposals, but I’m concerned that the Majority is simply trying to jam too much into this one hearing. Seven witnesses discussing 25 bills will not help the American public understand these proposals, let alone the members of this Committee. What’s more, we do not even have the relevant agencies here to help us understand how they will interpret the often conflicting directions included in the Republican bills. We are now a little overa year into this Administration, and all Washington Republicans have to show the American people in this Subcommittee’s purview are a check-the-box hearing designed to paper over the Republicans’ failure on infrastructure; their erosion of our privacy rights; and their elimination of net neutrality. When it comes to governing, this Subcommittee is falling short.
House Commerce Committee Chairman Greg Walden (R-OR) replied, "We could do a hearing every week for 25 weeks, and then move forward. Or, we can do one hearing with 25 bills, figure out our ideas among ourselves, come together as a committee in a bipartisan way, deal with making America great again, clear in the forefront on development of connectivity, wired and wireless, and the newest innovation and technology."
At this point an observer might have groaned thinking, 'Oh, great, one of those meetings.'
Chairman Marsha Blackburn asked the subcommittee to be guided by two principles:
- Any funds for broadband in an infrastructure package should go to unserved areas.
- The federal government should not be picking winners and losers in the marketplace; any federal support for broadband infrastructure should be competitively and technologically neutral.
What the Subcommittee Heard from the Witnesses
USTelecom President and CEO Jonathan Spalter testified that what's needed is bipartisan legislation to: 1) ensure sustainable and direct federal funding to support rural broadband deployment; and 2) reduce regulatory barriers. Throughout the hearing, Spalter made clear his organization's position that any increase in direct spending on broadband should be administered by the Federal Communications Commission through an increase in high-cost universal service fund support, or through a direct appropriation from Congress.
"Time is of the essence," he said. "We should look to existing programs that are well equipped to get additional resources out to the communities as quickly as possible. And to maximize finite resources to really bridge the digital divide, any increase in direct spending for broadband deployment should be targeted to ensure that funding to unserved areas is prioritized."
He noted two areas broadband providers believe need reform:
- Permitting: Congress should pass legislation that standardizes and streamlines permitting necessary to deploy broadband infrastructure which would help speed deployment. When scarce capital is being allocated to increase broadband connectivity, state and localities should not impede that deployment by delaying the granting of permits or insisting upon non-cost-based fees for access to rights-of-way and other conduit. The same principle applies to federal lands, which is why the Administration’s recent Executive Orders covering deployment on federal lands are so important, as are the bills under consideration today.
- Pole Attachments: Just as states and localities can impede broadband deployment by making it more difficult to deploy broadband infrastructure in rights-of-way and other conduit, pole owners can also slow broadband deployment and make it much more costly. Congress should fix the disparities in Section 224 of the Communications Act, eliminating not only the exclusions for municipalities and co-ops, but also treating the Commission’s rate formula as a ceiling, rather than a floor, and providing that all attachments should be treated alike for rate purposes.
CTIA's Brad Gillen testified on behalf of the wireless industry. He identified two challenges before the nation: closing the digital divide and global competitiveness. He said the wireless industry is preparing billions of dollars to build out new 5G network infrastructure -- and that the industry isn't looking for funding to do it, but reform of siting regulation. He noted that federal regulations add costs and delays to deployment. He highlighted reviews mandated by the National Historic Preservation Act (NHPA) and National Environmental Protection Act (NEPA):
Today, the FCC reviews nearly all antenna placements under the NHPA and NEPA. Notably, this regime is on top of separate historic and environmental protections that already attach to land and buildings designated for such protection, as well as additional state or local zoning requirements and fees. The suggestion that the NHPA/NEPA regime can be scaled back without threatening historically or environmentally sensitive sites is reinforced by the fact that NHPA/NEPA currently applies only to traditional wireless carriers, not to cable operators or other users of WiFi/unlicensed spectrum. To be clear, the wireless industry supports appropriate environmental and historic preservation review for sensitive sites and major projects. The current structure, however, fails to reflect the different impact of new small cells or installations in previously approved locations.
CTIA supports the Streamlining Permitting to Enable Efficient Deployment of Broadband Infrastructure Act (H.R. 4842) which would modernize the NEPA and NHPA process while preserving the critical role those regimes have in protecting the environment and history.
Gillen also noted challenges to deploying infrastructure on federal lands, calling for enhanced siting in these areas. CTIA backs the Broadband Deployment Streamlining Act (H.R. 4847) which directs the Secretaries of the Interior and Agriculture to streamline application processes for siting communications facilities on public lands. The bill would also institute a firm shot clock by which applications must be granted or denied for all federal wireless siting and require a GAO report evaluating the accuracy and reliability of data collected for the National Broadband Map.
Gillen encourged the subcommittee to promote a national wireless policy through clarifying its longstanding guidance to state and local government, saying:
Congress should make clear that the national policy does not allow localities to frustrate wireless deployment. Specifically, Congress established the rapid deployment of wireless infrastructure as a national priority and set nationwide guidelines for how localities should treat siting requests.... The most meaningful step Congress can take is to once again provide clear direction to—and guardrails around—state and local authorities.
He identified three areas for reform:
- Ensure Cost-Based Fees. Congress should make clear that localities retain the right to charge for access to government property, provided that such fees are fair and reasonable, competitively and technologically neutral, based on actual costs, and publicly disclosed.
- Set Reasonable and Enforceable Timelines. Congress should establish a “shot clock” on handling siting applications and deeming applications granted if there is no action within that shot clock period.
- Clarify Permitted Conduct. Congress should clarify that local roadblocks—like moratoria and discriminatory application review guidelines—are forbidden by Congress’s long-standing directive to eliminate rules that “prohibit or have the effect of prohibiting” the provision of communications services.
Representing the American Cable Association, Matthew Polka offered the subcommittee four principles:
- Encourage private investment: do not undermine broadband investments by permitting government funds to be used to overbuild providers or adopting measures that are not competitively and technology neutral.
- Remove barriers to deployment:
- Including impediments for utility pole attachers to overlash, install customer connections, and undertake short-run extensions.
- Ensure pole owners employ a transparent and timely application approval process.
- Provide for joint surveys among pole owners and new and existing attachers.
- Prohibit pole owners from imposing costs unrelated to new attachments when undertaking make-ready, and implement an effective self-help remedy to deal with existing attachers who fail to undertake make-ready.
- Subject electric cooperatives to the federal Pole Attachment law.
- Improve the process for accessing and sharing of conduit.
- Prohibit government agencies from charging right-of-way fees that are discriminatory or non-cost-based, or based on each service provided.
- Account for additional deployments in unserved areas resulting from the removal of barriers, the new tax law, and existing federal support programs before determining where to spend new funds and how much is needed; and
- Provide broadband subsidies efficiently: Where we need to provide additional support, we should build upon the FCC’s work by providing subsidies for broadband only in unserved, high cost areas; limiting the amount of federal support to account for subsidies provided by states unless any additional broadband performance is required; and using reverse auctions to distribute support.
Shirley Bloomfield, chief executive officer of NTCA–The Rural Broadband Association, said that because of the economics of rural broadband, "the single biggest challenge in rural America is simply making the business case to build any broadband at all. She continued:
After the initial business case can be made for rural broadband, we come to the next significant challenge – the barriers to deployment itself. This is where the questions and legislation presented in today’s hearing then become so important, helping to reduce the costs and time associated with deployment and allowing providers to get back to the business of building broadband networks in rural America. With millions of rural Americans still without access to robust, high-speed broadband, and millions more only receiving affordable access now through the help of [universal service support] programs, we must continue working diligently to ensure no child is left without Internet access for homework, no rural area is left without life-saving access to telehealth capabilities, and no Main Street business is prevented from utilizing e-commerce to compete in a global economy. To realize these goals, it is essential that Congress not only look at new ideas for building out rural broadband, but also focus on ways to leverage those programs that have already been successful in the past.
Legislative Director Scott Slesinger of the Natural Resources Defense Council spoke to proposals easing environmental regulations to accelerate broadband deployment. "The poor state of our infrastructure is not because of environmental reviews or permitting," he said. "Our problem is cash. The solution is the political will to appropriate the needed dollars. Environmental reviews and permitting are scapegoats." He noted numerous government studies that show that it is not federal rules that are causing delays. The number one problem is lack of funding, followed by state and local laws, citizen opposition to projects, and zoning restrictions. "Broadband deployment is not delayed by Environmental Impact Statements; in fact, no broadband project was ever required to do one by the Federal Communication Commission."
CTC Technology and Energy President (and Benton Foundation Board Member) Joanne Hovis noted that much of the current broadband deployment discussion is premised on the idea that a winning broadband strategy will smash so-called barriers, such as environmental permitting, local process, and costs of access to public facilities. But the premise is wrong. "In reality, the fundamental reason we do not see comprehensive broadband deployment throughout the United States is that areas with high infrastructure costs per user, particularly rural areas, fail to attract private capital."
The solution, Hovis said, is for governments at all levels to help improve the economics of broadband deployment in areas where investment has been insufficient. She offered six suggestions:
- Support public–private partnerships that ease the economic challenges of constructing rural and urban infrastructure;
- Incent local efforts to build infrastructure—ones that private service providers can use—by making bonding and other financing strategies more feasible, potentially through reduced interest payments or expanded use of tax-exempt bonds;
- Target meaningful infrastructure capital support to rural and urban broadband deserts, not only to attract private capital but also to stimulate private efforts to gain or retain competitive advantage;
- Require all entities that benefit from public subsidy, including access to public assets, to make enforceable commitments to build in areas that are historically unserved or underserved;
- Empower local governments to pursue broadband solutions of all types, including use of public assets to attract and shape private investment patterns, so as to leverage taxpayer-funded property and create competitive dynamics that attract incumbent investment; and
- Maximize the benefits of competition by requiring that all federal subsidy programs are offered on a competitive and neutral basis for bid by any qualified entity.
Such strategies directly address the core reason the digital divide persists: lack of return on investment in many areas of the country.
Hovis also addressed the possibility of future 5G networks closing the digital divide in rural areas, saying:
It’s critical to know that no credible engineer, market analyst, or carrier is claiming that 5G deployment is planned or technically appropriate for rural areas. This is because 5G, which is still in developmental stages, is a wireless technology for very fast communications over very short distances. No wireless carrier would use 5G to serve low-density rural areas.
The Connecticut Consumer Counsel's Elin Swanson Katz was the final witness, offering the following recommendations:
- Recognize that the Digital Divide exists in urban as well as rural communities;
- Acknowledge the role of federal, state, and local governments in ensuring affordable, reliable access to broadband internet services;
- Support ongoing mapping of the availability of broadband internet services;
- Support self-help efforts by state and local governments; and
- Provide financing, grants, matching funds, and other support for build-out of broadband infrastructure.
In the question and answer period that followed the prepared testimony, there was much discussion about streamlining regulations and enlisting state and local governments to help bring broadband to unserved and underserved areas. But there was unanimity that streamling regulations alone won't bring broadband to today's unserved rural areas -- it will take billions of dollars.
Democrats on the subcommittee cited a 2017 Federal Communications Commission report that estimates a $40 billion investment is necessary to deploy fixed broadband service to 98 percent of the United States. Projected costs rise to $80 billion to reach 100 percent of the population. All the witnesses agreed that universal broadband service will not be realized without federal investment.
“Absent funding, there is no broadband,” said Rep. Peter Welch (D-VT). “It’s as simple as that.”
Rep. Welch, you may recall, led a January 2017 letter signed by a bipartisan coalition of 71 members of the House sent to President Donald Trump urging him to include investments in rural broadband connectivity in any infrastructure proposal.
And, back in May, Democrats, led by Rep Pallone, offered the Leading Infrastructure for Tomorrow's America Act (H.R. 2479). The LIFT America Act authorizes $40 billion for deployment of secure and resilient broadband. The bill divides these funds between a $30 billion federal reverse auction to build out to unserved areas, and a $10 billion fund for states to use. If a state has no unserved areas, it may use the funds to build out to underserved areas, schools, or libraries. Additionally, if a state has no unserved areas, it may also use funds to deploy Next Generation 9-1-1.
Another point of apparent consensus is the need for more accurate data on where broadband is and is not available. Currently, there is simply no accurate national database of broadband availability, which makes it fairly impossible to know if the digital divide can truly be fixed.
“If you can’t measure it, you can’t manage it,” said USTelecom's Spalter during questioning. The subcommittee and witnesses recognized the complex task of not only mapping broadband access, but verifying its accuracy. There was lots of discussion regarding the need, but little discussion on how to achieve it. Spalter recommended the federal government consider enlisting the Census Bureau to help. Broadband mapping is addressed in some of the legislative proposals now before the subcommittee.
Although there's been great conjecture about a Trump administration infrastructure plan, his 2018 State of the Union Address mentioned building "gleaming new roads, bridges, highways, railways, and waterways across our land." He did not mention any funding for broadband deployment. So, for now, the future of U.S. broadband policy may be contained in the 25 bills before the Communications Subcommittee. We'll be looking for a mark-up and will keep you up to date in Headlines.
- Dividing the country won't bridge the digital divide (House Commerce Ranking Member Frank Pallone, Jr. (D-NJ))
- FCC Takes Final Steps for Next Phase of Rural Broadband Expansion (FCC)
- FCC Improves Wireless Emergency Alerts (FCC)
- FCC Votes to Establish Office of Economics & Analytics (FCC)
- President Trump didn’t say much about tech in his first-ever State of the Union address (Vox)
- California Senate defies FCC, approves net neutrality law (ars technica)
- Facebook promises to show users more local news (The Hill)
Weekend Reads (resist tl;dr)
- It’s Time to Reexamine the FCC’s Kid Vid Requirements (FCC Commissioner Michael O'Rielly)
- See Also: Benton Foundation Executive Director Adrianne Furniss' Now They Come for the Children
- Why everyone is freaking out about a White House plan to nationalize the country’s 5G data networks (Washington Post)
- The state of tech policy, one year into the Trump administration (Brookings)
- Solving the Rural Broadband Equation — Fund Infrastructure, Not Carriers. (Harold Feld blog)
- The Follower Factory (New York Times)
ICYMI from Benton
- A Winning Strategy for Superfast Broadband, Joanne Hovis
- Is this FCC Advisory Committee Steamrolling Cities to Help ISPs?, Robbie McBeath