As state lawmakers debate in committee rooms and Capitol chambers around the country, various broadband and Internet network infrastructure bills are appearing on agendas. Some are good news for local communities interested in developing publicly owned networks while other preemption bills make projects more difficult to plan, fund, and execute. We've gathered together some notable bills from several states that merit watching - good, bad, and possibly both.
For years, local communities were not allowed to bond to develop publicly owned broadband infrastructure in New Hampshire. Last year, the state adopted SB 170, which opened the door a crack so that municipalities can bond to develop infrastructure for public-private partnerships (PPPs) in "unserved" areas. This year, the New Hampshire General Court has the opportunity to push open the door a bit wider with SB 459.
SB 459 allows local communities to potentially define "unserved" areas themselves by putting more responsibility on Internet access providers. Municipalities must currently engage in a request for information process in which they must reach out to all Internet service providers operating in the community. SB 459, if adopted, would allow a community to consider areas "unserved" if a provider does not respond to such a request to clarify which premises are unserved. With the "unserved" designation, municipalities can bond to develop infrastructure to serve those premises.
In Pennsylvania, where lawmakers meet all year, Rep. Pam Snyder introduced HB 2055 in late in 2019. The bill allows local governments to provide telecommunications services, but limits them to unserved areas. If passed, the bill amends the Municipalities Authorities Act and, according to Snyder, likens Internet access from a municipal network to water or sewer service. The bill relies on the FCC definition of "unserved," which would likely result in an ineligible designation for areas that do not, in reality, have access to broadband, due to problems with FCC mapping.
If adopted, however, the measure might be the start of a different approach at the state level in Pennsylvania. Future legislators could redefine their definition of "unserved" (see New Hampshire above) and, because the inadequacies of federal mapping have become an important topic in recent years, "unserved" in Pennsylvania might broadened. The bill is currently in the House Local Government Committee and has bipartisan support.
Currently, state law doesn't allow municipalities to offer broadband services to the public in Pennsylvania. The only exception arises when a local telephone company, which does not provide broadband, refuses to do so within 14 months of a request by a political subdivision. If the company decides to offer those services, even at extremely high rates, a municipality is barred from doing so.
On the preemption front, Pennsylvania is attracting the displeasure of local communities and their advocates, including the Pennsylvania Municipal League (PML). HB 1400, introduced by Rep. Frank Farry, is similar to other bills around the country that try to impose state authority on local decisions in managing small cell equipment in public rights-of-way. The PML reports that:
HB 1400 is also more restrictive than the FCC Order that went into effect in January. Restrictions include lower application and rights-of-way management fees; no ability to prove actual costs and charge fees to meet those costs; larger antennas; and higher poles.
The bill, which was introduced in June 2019 and referred to the House Consumer Affairs Committee, has garnered renewed attention at the start of the new year. The PML has followed the issue closely and responded twice with memos to the members of the committee addressing the issue of preemption of local authority, public safety, and other problems with the bill. HB 1400 is still in the Consumer Affairs Committee waiting for review.
Another bill relating to placement of fixed wireless equipment in public rights-of-way has been introduced in Florida. HB 6075 and its companion SB 1848, however, restore local authority to communities that was previously taken away. HB 6075 is in the House Energy & Utilities Subcommitee of the Commerce Committee and has been waiting for a hearing since mid-January.
Not long ago, we reported on a bill in Iowa that has communities such as Waterloo and Cedar Falls nervously watching in Des Moines. Senate Study Bill 3009 (SSB 3009) strikes at local funding authority and the ability for municipal networks to offer competitive rates. In a recent Courier article, General Counsel from the Iowa Association of Municipal Utilities Tom Whipple commented:
“Sometimes, in a competitive scenario where an incumbent service provider is providing steep discounts in an attempt to lure customers, our members need to be able to temporarily drop prices to compete,” Whipple said in an email [to the Courier].
“The big incumbent providers can unfairly leverage customers in other communities (they serve) to subsidize steep discounts in a municipal utility town,” he added. “If our members can’t lower their prices to compete, it’s simply not fair.”
As we noted in January, one of the most damaging aspects of SSB 3009 is its attack on local funding options for Internet network infrastructure. It prohibits interdepartmental loans, a long-accepted form of funding infrastructure projects, at interest rates below "prevailing market rates" and imposes restrictions on other financial arrangements. The bill also imposes burdens on municipalities that offer broadband services by requiring separate billing for Internet access rather than including the fees with other other utilities, such as electric, sewer, and gas services.
In Idaho, H 490 also focuses on funding to preempt local attempts for better connectivity. The bill, which requires a long list of new "must" and "can't dos" for community networks, specifically prohibits local improvement districts (LID) as a funding mechanism. Bruce Patterson, Technology Director from Ammon, describes the bill as a "muni killer."
Ammon Fiber Optics has funded expansion of their award-winning open access fiber optic network with LIDs. The method allows the utility to target areas where they know subscriber interest is strong because demand must reach a minimum threshhold prior to deployment. We recently reported on the bill, which is still in the House Local Government Committee, that additional Idaho municipalities hope will either be voted down or ignored by legislators, especially those considering their own broadband projects.
Early in the year, Del. Mark Levine introduced HB 1052, a bill to remove all restrictions from local authority, which would allow local communities to invest in community broadband networks to serve the general public. Virginia has long been a state where communities have had to fight ever-increasing efforts from special interest lobbyists seeking to strip them of the local authority they still possess. Broadband advocates will remember the fight to stop HB 2108 in 2017 as a recent contentious battle.
The state has laws in place now that impose onerous reporting requirements on municipal networks to discourage new projects and operate almost as a de facto ban. Past fights on any broadband bill designed to restore local authority or ease requirements make any lawmaker careful.
After considering the current opposition from special interest lobbyists from the monopoly telcos and big cable companies, Del. Levine decided to pull back consideration of the bill until next year. In the mean time, supporters and staff will continue to research and gather information to support the measure for a strong showing in the future. We're looking forward to the revival of this proposal in 2021.
North Carolina's FIBER NC Act or H 431 will also be set aside for another year. Despite bipartisan appeal, lobbyists from large corporate Internet access companies have found ways to influence legislators and resulting changes have pushed it from positive to far from perfect for local communities. H 431, which we've described before, allows North Carolina communities to invest in necessary infrastructure in order to develop PPPs with Internet access companies. H 431 currently resides in the House Committee on Finance.
Among the staunch opposition, are large ISPs that are already engaging in similar PPPs with communities in other states, including Springfield, Missouri and a planned project in Page County, Virginia [PDF]. It's unclear why PPPs in these states are acceptable to large corporate Internet access companies but distasteful in North Carolina.
On the Funding Front
In Minnesota, the Office of Broadband Development decided on $20 million worth of projects - many cooperatives and at least one tribal project - for Border to Border Broadband Grants. States with broadband funding programs, such as Maine and Vermont, are working on new appropriations or distributing the funding set aside last year.
Governor JB Pritzker said:
“I want to be clear: This isn’t about a person’s ability to check Facebook. This is about a small business owner having the tools she needs to reach new customers. This is about an elderly couple’s ability to get access to medical experts anywhere in the nation even if they live in a rural community. This is about giving children the ability to research their homework assignments online. In short, this is about the right of all our communities to access health care, education, and economic opportunity.”
Learn more about the Illinois program by revisiting the conversation between Christopher and Matt Schmit, Deputy Director at the Illinois Department of Commerce and Economic Opportunity. They discussed the Illinois program and Matt's time in Minnesota, where he helped establish the Border to Border program.
Image of the New Hampshire State House by AlexiusHoratius / CC BY-SA