A year ago we wrote about Illinois’ $420 million commitment to broadband expansion, and now the first round of grant winners has been released. Together they total $50 million in state funds matched by $65 million in additional money for 28 projects by 18 different Internet Service Providers (ISPs) that will, ultimately, connect 26,000 homes, farms, community institutions, and businesses in the state. It represents the first milestone in what is a significant commitment to closing Illinois' broadband gap.

Lots of Winners, Some Caveats

The Broadband Grant Program offers applicants up to $5 million in funding for projects with the stipulation that they match it with an equal or greater amount of other, nonstate funds. First-round winners consist of both middle- and last-mile builds touching at least 27 counties throughout the state. For example, Cook County received a little under $2 million to expand its Chicago Southland Fiber Network (CSFN). CSFN provides backhaul services to many, including the Illinois Century Network — which serves over 3,400 public K-12 schools, universities, and libraries. Their application committed to focusing “on fiber paths that will provide distribution and host last mile service platforms addressing those communities with the greatest need, municipalities with no fiber assets . . and key regional education campus facilities.” 

In total, providers representing local control and democratic decision-making did well. The Illinois Electric Cooperative got a little under $3.5 million to build out symmetrical 1 Gigabit per second (Gbps) last-mile connections to 746 unserved households and 95 businesses, farms, and community anchor institutions in Calhoun County. Currently, its telecommunications division accounts for a relatively small but growing proportion of the services it provides to its more than 14,000 members across the state. JoCarrol Energy Cooperative, founded in 1939, also received $6 million to complete...

At the end of 2019, Congress passed the Revitalizing Underdeveloped Rural Areas and Lands (RURAL) Act, fixing a tax law change that threatened to raise rates and delay the expansion of broadband for rural cooperative members across the country.

Passage of the RURAL Act ensures that cooperatives can accept federal funds for broadband deployment, disaster relief, and other efforts without risking their nonprofit tax exempt status. A change in the 2017 tax law would have labeled these funds as revenue for the first time, potentially causing co-ops to exceed the allowable percentage of non-member income they must maintain to remain tax exempt.

After Senators Tina Smith (D-Minn.) and Rob Portman(R-Ohio) and Representatives Adrian Smith (R-) and Terri Sewell (D-Ala.) introduced the bipartisan bill in April, it attracted 55 additional cosponsors in the Senate and more than 300 in the House. It was eventually incorporated into the consolidated appropriations act and signed into law in December.

“Obstacles From the Federal Government”

We described the possible impact of the 2017 tax law change on rural cooperatives over a year ago, when Senator Smith first brought the issue to our attention.

Failure to remedy it would have forced some co-ops to choose between continuing with desperately needed broadband and disaster recovery projects and increasing their members’ rates. Northwestern Electric Cooperative CEO Tyson Littau described the difficulty of that decision to the National Rural Electric Cooperative Association (NRECA):

Do we rebuild and try to strengthen our distribution system and pay the taxes, or do we delay the mitigation project that would improve 1,200 miles of line throughout our territory? I think we have a responsibility to the membership to improve the system for the future.

Gulf Coast Electric Cooperative was another co-op faced with the prospect of raising electric rates to...

For many rural Americans, the local electric or telephone cooperative is their best hope for finally obtaining modern-day connectivity. With the support of government funding, rural cooperatives have brought electricity, telephone service, and more recently broadband access to some of the most rugged and sparsely populated places in the country.

However, recent tax code changes might prevent co-ops from connecting more rural communities. Cooperatives could potentially lose their tax exempt status if they accept government grants for broadband expansion and disaster recovery — an unintended yet foreseeable consequence of the Republican “Tax Cuts and Jobs Act” passed late last year. In a press release, Senator Tina Smith called attention to the oversight, noting, “This uncertainty has caused cooperatives significant concern and frozen some of their grant applications.”

Who’s Ready for Some Tax Policy?

As nonprofit membership corporations, rural electric and telephone cooperatives are exempted from paying taxes under section 501(c)(12) of the Internal Revenue Code (IRC). To maintain this tax exempt status, cooperatives must derive at least 85 percent of their income from members (e.g., from selling electricity). This is sometimes referred to as the the member income test or the income source test.

Not all sources of non-member income are included when calculating this percentage. Revenue from utility pole rentals, for instance, is exempted. In the past, rural cooperatives also excluded federal and state grants from the member income test, based on assorted rulings from the Internal Revenue Service (one example is Rev. Rul. 93-16, 1993–1 C.B. 26, which held that a federal grant given to an airport should not be considered income for tax purposes). As long as co-ops treated the government funding as a source of capital, not income, they could accept as much grant money as they wanted without the...