A bipartisan coalition of Pennsylvania lawmakers have introduced legislation that attempts to reverse some of the state’s most-stringent provisions hamstringing municipal broadband builds.
But experts suggest that while the bill may be well-intentioned, a cleaner approach would be to eliminate the state’s harmful and dated restrictions on municipal broadband entirely.
As it currently stands, Pennsylvania law prohibits municipalities from providing broadband to state residents for money, unless existing telecom providers don’t currently provide broadband access at the address, and those providers claim they’re willing to do so sometime within 14 months of being asked.
Under the state law, the only metric used to determine whether an ISP is adequately “serving” an “underserved” area is advertised speed. No additional metrics, including price or quality of service, are used to make such a determination.
Such restrictions not only hamstring creative, local municipal broadband solutions, it gives telecom industry giants the ability to effectively veto or delay any new promising builds simply by promising that they might someday extend advertised speeds to under-served territories.
New Bill Takes Aim at State Preemption Law
Enter SB1363, a new bill introduced in November to the Pennsylvania legislature that attempts to scale back at least some aspects of the state’s problematic restrictions on municipal broadband.
The bill, sponsored by Pennsylvania State Senator John I. Kane (D), starts by adopting a more modern standard definition of broadband of 100 Megabits per second (Mbps) in both directions, a dramatic boost from the FCC’s current definition of broadband: a paltry 25 Mbps downstream, 3 Mbps upstream.
The state’s definition hasn’t been upgraded in nearly 20 years. The FCC has consistently made suggestions it’s open to updating its definition, but has faced consistent lobbying opposition from entrenched monopolies. Most federal broadband subsidy programs have already adopted a more realistic 100 Mbps downstream, 20 Mbps upstream definition.
While SB1363 amends Titles 53 (Municipalities) and 66 (Public Utilities) of the Pennsylvania Consolidated Statutes to add some additional new exceptions in a bid to be more inclusive to municipalities, telecom experts and lawyers suggest that the bill doesn’t actually remove some of the more pointless and problematic sections of the state’s dated and unnecessary legal restrictions.
Pennsylvania is one of 17 states that still have laws on the books, usually ghost written by telecom monopolies, restricting broadband deployments by municipalities, cooperatives, and often publicly-owned utilities. Two additional states, Arkansas and Washington, significantly scaled back their own monopoly-supported state restrictions in the last year after the Covid home-education and telework bill highlighted their harm.
Pennsylvania’s restrictive law has been gaining significantly more attention as states across the country line up for an historic round of more than $50 billion in federal Covid relief and infrastructure broadband funding.
Pennsylvania is expected to get over $800 million in federal broadband grants courtesy of the Infrastructure Investment and Jobs Act (IIJA) and the Broadband Equity, Access, and Deployment (BEAD) Program it helped create, administered by the U.S. Department of Commerce's National Telecommunications and Information Administration (NTIA).
Legal Experts Say The Bill Creates ‘New Mess’ Without Eliminating The Existing One
“SB1363 appears to be a step in the right direction,” said Jim Baller, co-founder and president of the Coalition for Local Internet Choice (CLIC), an alliance of more than 600 organizations working to prevent or remove barriers to the ability of local governments to make the critical broadband infrastructure decisions that affect their communities.
Others were less diplomatic.
Sascha Meinrath, a telecommunications professor at Penn State University, said the bill had numerous problems, including the “over-specification” of definitions that cling too tightly to the FCC’s definition of terms like “underserved,” which ignores that the NTIA has a different definition for underserved that omits less useful technologies like expensive, capped satellite.
That means that this bill will cause a lot of grief for many rural munis attempting to do demand aggregation for things like NTIA funding whereby they could serve underserved areas as defined by NTIA, but are still forbidden from doing so due to the FCC not declaring these same areas as ‘underserved.'
He also noted that the bill fails to fully remove the arbitrary barrier to entry for municipalities, keeping state policy in direct conflict with a federal mandate that BEAD grant applicants cannot discriminate against municipalities. Pennsylvania isn’t alone; pressured by monopolies, several states have passed new laws attempting to prevent municipalities from obtaining federal funds.
SB1363 does not appear to remove the old veto structure in 66 P.A.C.S. 3014(h), though experts suggested it does provide an exception for authorities created under the proposed new 53 P.A.C.S. 5607(a)(19). That’s a step in the right direction, though not as helpful as eliminating 66 P.A.C.S. 3014(h) in its entirety.
“Allowing municipalities to only build infrastructure to serve underserved areas as defined by the FCC is still a barrier, plain and simple,” Meinrath said. Especially given the agency is still struggling to accurately measure the nation’s significant broadband gaps.
Federal guidance has urged all 17 states to roll back state level restrictions on municipal broadband if they want to maximize the impact of BEAD grants and other federal broadband funding. Numerous municipalities in Pennsylvania say they have already run face-first into the state’s unnecessary restrictions as they navigate a once-in-a-generation funding opportunity.
“All in all, I think Senator Kane means well—but his bill creates a new mess instead of eliminating the pre-existing one,” Meinrath said.
Meinrath published a 2019 study on Pennsylvania broadband access that found, based on 2018 data, that there was no county in Pennsylvania where at least 50 percent of the populace received “broadband” connectivity as defined by the FCC. He also found that FCC data had over-stated truly available speeds by as much as 500 percent in many areas.
It’s a problem not helped by state laws that hamstring creative, local municipalities that often deliver faster, cheaper, and more locally-accountable broadband alternatives. As such weakening the state's restrictions is good, but eliminating them altogether would be better.
“The far more parsimonious solution is to not have the state define broadband at all, and to simply expunge the anti-muni language entirely—and not substitute a lower muni broadband barrier to entry for a higher one,” he added. “I don't know why Senator Kane decided to ‘split the baby’ on this one—likely it was an accidental ‘own goal.’”
Senator Kane’s office did not respond to a request for comment seeking clarification about some of the muddier language in the proposal. The bill was introduced to the Pennsylvania state legislature on November 14, and is currently under review by the Pennsylvania Senate Communications & Technology Committee.
Pennsylvania just released its new broadband plan to shore up affordable access to broadband across the state. The word “municipal” appears just once, and while the plan does discuss helpful concepts such as “dig once” requirements and the “reduction of obstacles to broadband deployment,” fully eliminating a harmful, 20-year old protectionist state law crafted specifically by regional monopolies to hamper competition appears to be an afterthought.
Header image courtesy of Flickr user Blogtrepreneur, Attribution 2.0 Generic (CC BY 2.0)
Inline image of Pennsylvania state house courtesy of Wikimedia Commons, Attribution-ShareAlike 4.0 International (CC BY-SA 4.0)