Selected New Developments in Broadband – January

Capitol Hill

Although President Trump criticized the final $900 billion COVID-relief legislative package (containing both COVID-relief and an omnibus spending bill that averted a government shutdown) for providing too little financial relief to Americans and too much wasteful spending, on December 27 he signed the package into law.

Regarding the $7 billion broadband spending component of the COVID-relief package, the conservative Free State Foundation had this summary:

The relief package also includes $3.2 billion to keep Americans connected during the COVID-19 pandemic. Eligible households will receive a monthly emergency broadband benefit in the form of a $50 discount on high-speed Internet access service. Eligibility generally is limited to low-income households and those who have endured lay-offs or furloughs.

[T]he FCC has sixty days to adopt rules implementing the program, which will continue for six months after the Secretary of Health and Human Services has declared an end to the public health emergency. The Commission will reimburse participating ISPs directly for the amount of the monthly discount and up to $100 for a connected device (tablet, laptop, or desktop computer) that they provide. A provider need not be designated as an Eligible Telecommunications Carrier in order to participate.

In addition, the legislation tasks NTIA with disbursing a total of $1.3 billion for broadband grant programs, $1 billion targeting Tribal lands and $300 million for unserved (including rural) areas. Recipients of Tribal Broadband Connectivity Grants may use those funds to deploy fixed broadband infrastructure in unserved areas or, during the pandemic, for subsidized broadband service, distance learning, or telehealth programs.

The remaining $300 million will be made available in the form of Broadband Infrastructure Deployment Grants, which will target unserved areas for network infrastructure construction and prioritize, among other things, projects that target smaller communities (that is, counties, cities, or towns with less than 50,000 inhabitants).

NTIA also will become home to a new Office of Minority Broadband Initiatives that will perform a number of responsibilities, most significantly the administration of a $285 million pilot program focusing primarily on the broadband needs of Historically Black Colleges and Universities (HBCUs) and their surrounding communities.

National Telecommunications and Information Administration (NTIA)

NTIA has launched a Digital Inclusion webpage that provides a clearinghouse of information about federal and state digital inclusion resources. There is no NTIA webinar scheduled for December. The November webinar addressed How Broadband Enhances Local Economies while October addressed Digital Inclusion and K-12 Education: The Impact of COVID-19 on Students and Educators; archived webinars are here. The next webinar will be February 17, 2021: Data as the Foundation for Broadband Planning (registration link).

The December BroadbandUSA Newsletter links to a November 2020 PEW article providing an overview of states' efforts to tap CARES Act funding for broadband, with links to resources to track those efforts. There are also links to broadband articles from Texas, Illinois, Mississippi, Wisconsin, Michigan (mapping northern Michigan's broadband desert), and Ohio (challenges bringing broadband to its southern Appalachian counties), among others. (Somewhat related, U.S. DOE has launched a portal to track state usage of the $31 billion CARES Act Education Stabilization Fund.)

NTIA hosts a searchable database featuring 50 federal broadband funding opportunities across a dozen federal agencies. The NTIA Broadband USA main page features a state-by-state summary of state broadband programs (scroll down to the map and click on a state).

USDA - Rural Utilities Service (RUS)

The most recent RUS Community Connect Grant program application window is now closed. Grant awards require a 15% non-federal match and can range from $100,000 up to $3 million and can be used for the construction, acquisition, or leasing of facilities, including spectrum, land or buildings used to deploy service at the [a minimum of 25 Mbps down/3 Mbps up] to all residential and business customers located within the Proposed Funded Service Area . . . ." Applicants must provide free broadband service for two years to Essential Community Facilities" in the funded service area.

Proposed ReConnect projects can be viewed here (must create free log-in to access); 2019 awardees are identified here; 2020 awardees are here; proposed and funded projects are depicted on an interactive map here. The Distance Learning & Telemedicine Grant Program is currently closed.

Precision Agriculture

The FCC's Office of Economics and Analytics on December 15, 2020, released a working paper on the impact of broadband availability on agriculture:

The working paper analyzes the impact of increased broadband availability in rural areas on the productivity of U.S. farms, drawing on both FCC data on broadband availability by census tract and U.S. Department of Agriculture (USDA) data on agricultural productivity by county, for key row crops like corn, cotton, hay, and soybeans. The working paper finds statistically significant effects of increased broadband service, both in terms of lower costs (fertilizer, fuel, seed, etc.) and higher production (yield). To cite one striking result, the analysis finds that a 1% increase in the number of 25 Mbps/3 Mbps or better broadband connections per 1,000 households is associated with a 3.6% increase in corn yields, as measured in bushels per acre.

The FCC's recently-approved $9 billion 5G Rural Fund will include a $1 billion set-aside for agricultural use in Phase 2. Farms are already using private LTE networks with CBRS spectrum, including greenhouse monitoring in Missouri and supporting drone-mounted cameras to make real-time decisions on herbicide applications in North Dakota. In the miscellaneous" rural category, note the American Connection Project, which identifies existing open Wi-Fi networks in rural areas.

NTIA's September webinar on precision agriculture is available here. The most recent meeting of the FCC's Precision Agriculture Connectivity Advisory Task Force was October 28 and can be viewed here. Background and links to prior meetings are available here. The April 2019 USDA report on rural broadband infrastructure and next-generation precision agriculture is available here. As the precision agriculture market explodes, Purdue University announced in August 2020 that it was collaborating with the National Science Foundation-funded Engineering Research Center to develop the Internet of Things for Precision Agriculture.

Federal Communications Commission (FCC)

The Senate confirmed Republican FCC Commissioner nominee Nathan A. Simington to the FCC on December 8, 2020, replacing Commissioner Michael O'Rielly. Although Simington was initially not favored to win confirmation, Senate Republicans apparently wanted to ensure that a Biden FCC begins deadlocked with a 2-2 tie (Brendan Carr, Simington, Jessica Rosenworcel, and Geoffrey Starks).

The only broadband item from the December 10, 2020, FCC open meeting concerned adopting standards supporting broadcast Internet. The meeting also addressed several national security items concerning Chinese firms; the agenda and meeting details are available here. The agenda is now available for Chairman Pai's last open meeting on January 13, 2021.

Universal Service/Digital Equity

The current universal service construct, which is over 25 years old, is straining to address the equitable distribution of limited broadband resources; partly reflected in a universal service fund contribution factor that just jumped in one quarter from 27% to almost 32%. The next FCC will inherit this unstable situation and so we are adding this general universal service section to the memo. Notably, the related concepts of universal service and digital equity seem to be merging, as illustrated by this recent comprehensive Benton report: Broadband for America NOW".

COVID-19: New Telehealth Programs and E-rate & Rural Health Waivers

The $100 million Connected Care Pilot Project application window opened in early November and closed on December 7. The linked public notice above has essential information, but here is the FCC's Connected Care Pilot webpage with more background.

The Commission's March 2020 COVID-related waiver of the gift rules for both the E-rate and RHC programs was recently further extended until June 30, 2021. Note the waiver is available only to certain entities:

1. Health care providers involved in the screening and treatment of patients for COVID-19 and in providing service to other patients in an effort to both help mitigate the spread of COVID-19 and devote limited on-site medical resources towards the treatment of COVID-19";
2. E-Rate eligible entities on behalf of students, teachers, or patrons while schools and libraries prepare for extended remote learning and remain fully or partially closed as a direct result of COVID-19."

The FCC in April 2020 established the COVID-19 Telehealth Program in response to Congress appropriating $200 million in funding for telehealth to the FCC as part of the CARES Act. (As noted above, Congress has appropriated an additional $250 million to this program, which we will look at more closely in our next installment.) Funding was exhausted by June 2020 and the final list of awardees is available here (Excel; PDF). Successful applicants should have already received funding commitments.

E-rate

The Commission on December 10, 2020, modified E-rate invoicing rules to ensure applicants have the ability to invoice for 120 days after USAC issues a revised funding Commitment.

New America recently released a report addressing the digital learning gap in the age of COVID: The Online Learning Equity Gap - Innovative Solutions to Connect All Students at Home. The report strongly supports the FCC's use of E-rate funding to support digital learning outside of the classroom, and highlights innovative efforts in Colorado and Virginia to address the online learning chasm." Related: see this article about the DragonNet project in Missouri. As noted in November, Funds for Learning has released its annual E-rate Trends Report for 2020, reflecting spending and survey data through July 17, 2020.

Rural Health Care

We understand the FCC has instructed the Universal Service Administration Company (USAC) to clear the backlog of unapproved Rural Health Care (RHC) applications from FY 2019 and to release applications that have been unofficially held from prior years, assumed to be based on disputes over the appropriate rural rate." This push to clear the backlog is coming at the expense of resources devoted to new funding applications for FY 2021. Paradoxically this means, although the new rules allowed competitive bidding to start this past July 1 (instead of the upcoming January 1), many may not be able to commence their applications early because of USAC delays approving eligibility and RFPs.

Net Neutrality

No parties sought Supreme Court review of the October 2019 DC Circuit decision upholding the FCC's 2017 repeal of net neutrality rules, thus ending the voluntary stays in the state-specific federal litigation. Recall the DC Circuit reversed the FCC in asserting blanket preemption of state-specific rules, but this did not preclude state-by-state preemption claims based on specific conflicts with federal law. In addition to California and Vermont (litigation updates below), four other states have enacted some form of net neutrality law: Colorado, Maine, Oregon, and Washington, none of which have yet been challenged by industry or the federal government. The likely reason for no new cases is that potential litigants are looking to the California and Vermont cases to see what those courts do. Meanwhile, Public Knowledge highlights some of what carriers are up to in the absence of federal net neutrality rules.

Federal Courts:

• Eastern District of California. In October 2018, SB 822, the California Internet Consumer Protection and Net Neutrality Act of 2018 was challenged in federal district court in California by the DOJ and several industry groups in a separate suit. DOJ had sought a preliminary injunction but the court agreed to a request by all parties to stay the case after California agreed not to enforce the law pending final resolution of Mozilla v. FCC. The DOJ on August 5, 2020 filed a renewed motion for a preliminary injunction; the state responded on September 16; reply briefs by the DOJ and industry groups were filed October 14.
• Vermont District Court. In October 2018 the same industry groups - American Cable Association (ACA), CTIA - The Wireless Association (CTIA), NCTA - The Internet & Television Association (NCTA), and USTelecom challenged Vermont's net neutrality law and executive order in federal district court there and in January 2019 sought summary judgment. The parties in March 2019 agreed to stay further proceedings pending a final resolution of Mozilla v. FCC. DOJ and industry groups also renewed their challenges to the Vermont law after the stay expired, however, the parties have agreed to a new stay pending the outcome of the motions for injunctions in the California litigation.

States

The National Conference of State Legislators (NCSL) features a summary of net neutrality efforts by state for 2020 here (updated March 27, 2020). Note this list does not identify current laws, only current efforts to pass new laws.