Dumb State Laws Blocking Community Broadband Could Mar Historic Subsidy Efforts

We've noted a few times how there's an absolutely historic infusion of more than $60 billion in broadband subsidies on the way thanks to both COVID relief (American Rescue Plan Act) and the recent infrastructure bill (Infrastructure Investment and Jobs Act).

We also noted how there's no limit of obstacles that could meaningfully screw up efforts to get that money where it needs to go, including our longstanding failure to accurately map broadband availability, the industry's successful effort to gridlock the FCC by blocking highly-qualified nominees, and giant telecom monopolies underhanded efforts to gobble up the lion's share of funding.

But there's another obstacle that's could mar the billions in looming broadband funding from getting where it needs to go: the 17 states that have passed shitty laws, usually ghost written by telecom monopolies, hindering or blocking community broadband networks.

The BEAD (Broadband Equity, Access and Deployment) grants included in the infrastructure bill are arguably the biggest broadband subsidy effort ever undertaken by the U.S. government. The NTIA has included some language in grant requirements recommending states ease off such restrictions, leading groups like BroadbandNow to believe this will delay the doling out of funding:

It's not difficult to see how this could potentially play out in states with heavily entrenched anti-municipal stances. When states begin submitting their plans to the NTIA, those without restrictions could begin receiving funds quickly, while those that want a fight could end up being delayed by months - or even years.

I'm not sure that's necessarily true. The federal government traditionally lacks the backbone to get into such skirmishes, and wants the program, already delayed by mapping issues, out the door quickly. And as the NTIA made clear this week in comments to the press, their language simply suggests that states might want to consider easing such restrictions:

We want to get the best possible networks built, and to do that, we've asked states to create a level playing field on which municipalities, cooperatives, and small, medium, and large companies can all compete for these funds," the representative stated. That said, there is nothing in our rules that preempts existing state laws."

That's not to say these pointless state restrictions aren't still a problem. They hamstrung efforts to shore up affordable broadband access during peak COVID (leading Arkansas and Washington state to eliminate theirs), and will inevitably play a role again here. If your state (a list here) is willing to pass such a law, it's also certainly willing to do whatever else monopolies want.

And what they want is to ensure that all federal and state funding goes to them, and none of it goes to smaller ISPs, or the kind of municipal networks that could (gasp) force them to try harder. They like things exactly how they are: little competitive pressure and a federal telecom policy apparatus too chickenshit to meaningfully hold them accountable for anything.

We've already seen incumbent giants like Charter file cumbersome, costly challenges to undermine grant applications by smaller ISPs and municipal broadband operations in other grant programs. And comic levels of state corruption have resulted in even more terrible state laws specifically designed to funnel grant money away from creative competitive alternatives and into monopoly pockets.

The biggest potential delay in getting BEAD funding out the door remains our terrible broadband maps, historically exploited to cover up massive competitive shortcomings due to monopoly power. Getting $50+ billion in BEAD funds usefully deployed depends on getting these maps right, and incumbents like Comcast, AT&T, and Charter have also tried to undermine that process at every step.

Our recent Copia broadband study documents how the feds could go a long way toward fixing U.S. broadband problems by meaningfully embracing open access, community built broadband networks in all their varied, creative forms (cooperatives, utilities, municipalities, public/private partnerships) to apply meaningful pressure on entrenched monopolies without wading into rate regulation.

On the federal level, the best we got is some vague NTIA language suggesting that states might want to consider not letting telecom monopolies literally write shitty state law. On the state level, some states are trying to direct this funding toward open access networks (see: Washington), but most are primarily just marionettes to the interests of Comcast and AT&T.

Generally the feds refuse to embrace community broadband with any vigor because it would upset not only some of their biggest campaign contributors, but giant companies tethered for decades to our domestic intelligence gathering and first responder apparatus. So generally what you get is a policy stage play where we throw cash at the problem, but refuse to fix the underlying rot.

That's certainly not going to change with this looming BEAD funding, and if anything, the incentive and lobbying pressure to shovel this money predominately to the very monopolies responsible for lackluster U.S. broadband is going to be more intense than ever with so much money on the line. The end result will likely surprise nobody.