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Jim Baller speaks with the Pew Charitable Trusts About Legal Barriers to Expanding High Speed Reliable Internet

CLIC has reprinted this interview with permission of the Pew Charitable Trusts

Last updated October 15, 2021

The pandemic accelerated the momentum for getting every American access to affordable, reliable broadband. It also elevated the role that states and localities should play in bridging the digital divide—the gap between those with access to high-speed internet and those without it—including by building partnerships with internet service providers (ISPs) to get communities online. 

But telecommunications law is complex and can occasionally present legal and regulatory challenges to broadband expansion projects. As communities and ISPs work to form partnerships, they need a legal strategy and action plan to address these complexities early in the process.

Attorney James Baller is a partner at Keller and Heckman LLP, representing clients across the country in a range of communications legal matters, and president of the Coalition for Local Internet Choice, which works to prevent or remove barriers to local broadband initiatives and public-private partnerships. He is also the founder and former president of the U.S. Broadband Coalition, which helped provide the framework used in the Federal Communications Commission’s 2010 National Broadband Plan.

This interview has been edited for clarity and length.

Q: As Pew has reported, states are using a variety of approaches to expand broadband to their communities, especially underserved ones.

A: You’re absolutely right. I’m delighted to see so many states stepping forward aggressively, and in so many different ways, to meet today’s broadband challenge. Recognition that states have a critical role to play in accelerating broadband deployment, adoption, and use has really taken hold, especially in the last year. Many states have formed broadband offices to gather accurate information, develop statewide strategies, provide guidance to localities, and, in many cases, offer substantial funding as well. 

Q: But deploying programs to expand broadband access can be complicated in some states.

A: Yes, unfortunately, several states still have legal barriers that stand in the way of local broadband initiatives and public-private partnerships, and some states prevent local governments from taking full advantage of available federal or state funds. That has to change.      

Q: Speaking of federal and state funds: How can federal and state governments best collaborate to bring high-speed connectivity to everyone?

A: During the last decade, the federal government and the states spent billions of dollars on programs to spur broadband deployment, often with hugely disappointing results. Things will surely get better as a result of the lessons from these experiences and the substantial influx of federal, state, local, and private funding for broadband that we’ll see during the next few years, especially if the infrastructure bill becomes law. The National Telecommunications and Information Administration, or NTIA, tracks more than 80 federal broadband funding programs across 14 federal agencies. These programs interact with each other, and with the rapidly proliferating state broadband funding programs, in many different ways. So it’s important for leaders at every level of government to understand how funding sources overlap, and where legal and regulatory guidance or rules may come into conflict with one another.

Q: You mentioned the infrastructure bill. What’s in it for broadband?

A: If the House of Representatives passes the Senate version without substantial change, some $42.45 billion in federal funds would be distributed by the states. The bill also includes deployment funds to be distributed through the Department of Agriculture and provides an additional $2 billion to a tribal broadband program that’s currently administered by NTIA.  

Q: Sounds promising for supporters of broadband expansion.

A: Yes, but we’ll still face many significant challenges. For example, while most federal and state programs have focused on making broadband universally available and affordable, most of these programs don’t offer federal or state support to any community that already meets the FCC’s definition of “broadband”—which is 25 megabits per second, or Mbps, for downloads, and 3 Mbps for uploads. That’s much slower than how most people understand the term “broadband” today—not to mention what they need for learning and working remotely. Yet areas that have that puny level of connectivity are typically shut out from federal or state support.

Q: Let’s step back and talk about why communities even need high-speed broadband.

A: Advanced communications networks are similar to electric power systems: They’re essential platforms, drivers, and enablers of progress in just about everything that matters to communities. This includes economic development, education, workforce development, public safety, health care, energy management, environmental protection, transportation, government services, and much more. If America is going to remain a great nation in the decades ahead, we must not limit ourselves to simply ensuring that all Americans eventually have affordable access to high-capacity broadband capabilities in order to participate fully in modern life; we must also ensure that we get there as rapidly as possible. To do that, we must take advantage of every feasible option, including community initiatives and public-private broadband partnerships. 

Q: Your expertise is on the legal side. So, can you explain how federal, state, and local communications laws interact?

A: On the regulatory side, interstate communications are generally subject to federal law, and intrastate communications are generally subject to state law. Cable TV service is governed by state and/or local law, which are framed by federal standards. But internet access service is largely unregulated at all levels of government, except for various detailed reporting and transparency requirements.

Q: Unregulated? Really?

A: Well, Congress has not undertaken a comprehensive review of our country’s communications laws since the Telecommunications Act of 1996. Of course, communications services and the communications industry have changed in many significant ways over the last 25 years, which means that our regulatory infrastructure has not kept up. As a result, our regulatory regime is now marred by many head-scratching inconsistencies and anomalies. Another overhaul is long overdue.

Q: It seems as if, on the regulatory side as well as the funding side, local leaders face complicated and challenging requirements and processes. What would you advise community leaders to do?

A: First and foremost, I’d advise them not to panic. Hundreds of communities have found ways to address these matters successfully. The key is to identify and deal with the requirements and opportunities early on. Mistakes that can be very costly and disruptive are often avoidable. 

Q: As local leaders look to expand broadband access in their communities, they often evaluate multiple options, including not only community broadband initiatives but what we often call P3s—public-private partnerships. What key legal issues should local leaders be aware of?

A: Important legal issues exist at every stage of P3 projects. First, to provide or facilitate the provision of communications activities, local governments must have authority to do so under state and local law.  So, local leaders need to identify and plan around any limits on their authority, including the procedural steps they’re required to take. In the project planning stage, the public entity must map out how it or its partners will deal with various funding, structural, governance, and regulatory issues, including rights-of-way, pole attachments, easements, and many other legal issues. If the local government wants to find potential partners through a formal or informal bidding process, such as a request for proposals or quotes, it must comply with applicable procurement requirements. In the negotiation stage, local leaders will have to carefully work through the allocation of responsibilities, risks, and rewards with the partner, or partners, in the project. Then, during the implementation stage, they’ll have to satisfy all of the legal obligations required by their agreements or applicable law. 

Q: So how do P3s make sure they’re meeting all the requirements?

A: Figuring this out won’t always be easy. To the contrary, federal and state requirements are often counterintuitive; they’re creatures of history rather than of logic. The best way to ensure compliance down the road is to make experts a part of the project team from the outset. Understanding the regulatory landscape early on also gives the parties to P3s an opportunity to organize their projects in such a way that they maximize regulatory benefits. 

Q: You played a major role in paving the way for the National Broadband Plan in 2010, and we’re at a similarly pivotal moment in broadband policy today. What’s different this time around?

A: There are many differences, but I think that the three most important ones are: that many more Americans now understand the critical importance of affordable access to advanced communications, so we’re much closer to a national consensus on the need for robust broadband everywhere; that billions of federal and state dollars, as well as billions more in private capital, are becoming available to help accelerate broadband deployment, adoption, and use; and that there’s a substantial risk that these funds will not be invested in optimal ways without a widely accepted and trusted national strategy to guide the process. 

Last time around, Congress put the development of the National Broadband Plan in the FCC’s [Federal Communications Commission’s] hands, rather than the approach I had proposed: an independent blue-ribbon commission to study the key issues and make recommendations to the president and Congress. I think a commission like that would still be a good idea now.

And I was also disappointed in the relatively modest 10-year goals set forth in 2010 plan. Had we set higher goals, we might now be much further along. If the country is going to remain a leader in the increasingly competitive global economy, we need to set and deliver on truly full-bodied goals. I believe we have a real opportunity to do that this time around.

CLIC President, Jim Baller, Testifies Before Missouri House of Representatives: Why it is Time to Remove Barriers to Local Internet Choice

On September 16, 2021, Jim Baller, CLIC President, testified before the Missouri House of Representatives. He was invited to address two questions: (1) What are other states doing about barriers to municipal, cooperative, and public-private broadband initiatives? and (2) What is the federal government doing to accelerate the deployment, adoption, and use of advanced communications networks and capabilities?  In answering the first question, Jim focused on various states that have recently repealed or refused to adopt new barriers to entry by local governments, cooperative and public private partnerships. He also noted the enormous financial opportunities now available through federal funding programs seeking to accelerate the deployment, adoption, and use of advanced communications services and capabilities.  He added that, “It would be highly unfortunate if current or future state barriers precluded local Missouri communities from taking advantage of these much-needed funds.”

Jim Baller’s full testimony can be found here.

Local Internet Choice Wins in Ohio: Budget Language Removed That Would Have Terminated the State’s Community Broadband Initiatives

CLIC congratulates the communities and companies of the state of Ohio for blocking passage of a barrier to broadband opportunity and competition. In early June, language was surreptitiously inserted into Senate amendments to a state budget bill that would have prohibited existing and future community broadband initiatives in the state, including public-private partnerships. CLIC joined a state-wide opposition effort by organizing a letter with a coalition of twenty prominent companies and national organizations to ensure that state legislators and the Governor understood the enormous detrimental impact these provisions would have, not only the public sector, but on the private sector as well.

As CLIC’s letter states:

“While the harm that these proposed restrictions would do to Ohio’s communities should be obvious, the injury to the private sector may not be. In fact, the restrictions would hurt the private sector in multiple ways. They would prevent private companies from making timely sales of equipment and services to public networks. They would impede companies from using advanced public networks to offer businesses and residential customers an endless array of modern products and services. They would thwart economic and educational opportunities that can contribute to a skilled workforce that would benefit existing and new businesses across the state. They would also discourage companies from entering into creative public-private partnerships that benefit all concerned.”

Media coverage of the Senate language noted that it would have effectively pulled the plug on nearly three dozen municipal broadband networks across the state, including well known systems in Hudson, Wadsworth & Fairlawn, while also preventing any new community broadband networks.  As the COVID-19 pandemic had made unmistakably clear, much more broadband infrastructure, not less, is necessary.

On June 28, the budget bill passed out of the Ohio House-Senate Conference Committee on a vote of 6-0, without the anti-municipal broadband language. On June 30, the budget bill passed the House and Senate and was sent to Governor DeWine without the detrimental broadband language. Unfortunately, in a bill enacted in May, the state had previously made community-run operations ineligible for a share of the state’s $250 million grant allocation for broadband deployments.

A copy of CLIC’s letter can be found here.

Fairlawn, Ohio, one of the state’s largest community-run broadband operations in the state, covered these events here:

CLIC & 19 Private-Sector Companies & Associations Oppose Ohio Senate Budget Amendments Aimed at Stopping Local Internet Choice

On June 15, 2021, the Coalition for Local Internet Choice (CLIC) and 19 private-sector companies and associations submitted a strongly worded letter to the members of the House, Senate and Governor of Ohio, vigorously opposing a Senate amendment to House Budget Bill 110 that would effectively kill community-led local internet choice. Apparently dropped into Senate amendments to a House Omnibus budget bill without public notice or discussion, the provisions would effectively kill existing and future community broadband initiatives as well as public-private broadband partnerships. The amendment would also prevent local Ohio governments from taking advantage of historical federal funding for broadband infrastructure and access improvements.

CLIC’s joint letter, featuring many well-known public and private signatories such as Google Fiber, TING, Sifi, Consumer Reports and the Electronic Frontier Foundation, among many others, emphasized how the amendment language would not only be bad for the local communities affected, but bad for the private sector and America’s global competitiveness. 

While the harm that these proposed restrictions would do to Ohio’s communities should be obvious,” the letter reads, “the injury to the private sector may not be. In fact, the restrictions would hurt the private sector in multiple ways. They would prevent private companies from making timely sales of equipment and services to public networks. They would impede companies from using advanced public networks to offer businesses and residential customers an endless array of modern products and services. They would thwart economic and educational opportunities that can contribute to a skilled workforce that would benefit existing and new businesses across the state. They would also discourage companies from entering into creative public-private partnerships that benefit all concerned.”

The letter underscores the broadband lessons of COVID: “Our nation’s experience with COVID-19 and its profound impacts on our lives have removed any reasonable doubts about the need for prompt and vigorous action by both the private and the public sectors. The Ohio legislature should reject the proposed restrictions and any other counterproductive measures that may be introduced to replace them.”

According to Ohio locals, the stealth nature of the language amendments meant many Senators did not know they voted for these anti-competitive provisions when the lengthy bill passed the Senate on June 9. On June 10, various Senate amendments to HB110, including these anti-competitive provisions, were rejected by the Ohio House of Representatives, and now the two versions of the budget bill head for conference committee.

“The proposed new restrictions in Ohio stand in sharp contrast to a new law in Arkansas that broadly expands local broadband internet options.  Both houses of the conservative Arkansas legislature voted unanimously in favor of that law.  Arkansas got it right,” said CLIC’s president, Jim Baller.

Follow this event here: The Battle for Community Broadband in Ohio

Broadband Public/Private Partnerships Are Working in North Carolina

Clic Guest Blog by Kathy Scheller, Director, Government Relations, MetroNet

As the fastest growing 100% fiber company in the nation, MetroNet continues to prove that collaboration is the key to successful fiber optic deployment in over 100 communities across 9 states.  Most recently, the cities of Fayetteville and Greenville, North Carolina announced MetroNet’s intention to construct a fiber optic network providing high-speed internet, television, and phone in their cities with a combined investment by the company of $110 million.   How does that happen? 

Enter the Public/Private Partnership.

When MetroNet comes into a new city with a fiber optic deployment of this magnitude, it is critical that there is a willingness to work together on a successful implementation.  Both Fayetteville and Greenville stepped up to the plate to do the work on their part while keeping the level playing field for their cities at the forefront. 

Leadership, not only from the cities, but also from their respective municipal electric utilities, strategized with MetroNet early in the process regarding necessary staff requirements, permitting, city/state ordinances and a continual construction communication process. The result is a solid plan to work together to bring in a world-class fiber optic infrastructure that will be a game changer for residents and businesses alike in both Fayetteville and Greenville.  For MetroNet to make the investment, it is critical that this effective public/private partnership is achievable.

In evaluating potential communities for the fiber optic deployment/investment, MetroNet goes through an extensive due diligence process.  While it was determined that both Fayetteville and Greenville were underserved in their broadband capabilities, the city leadership in support of the initiative from both communities proved to be a determining factor in MetroNet’s entrance into North Carolina.

As MetroNet’s fiber optic network begins to light up both cities, the impact will be immediate.   Homes will be able to access symmetrical broadband speeds (currently up to 1 Gig) that will support multiple devices utilized for school and work, streaming, video conferencing and more.  Businesses will be able to customize their fiber access and utilization as well.  As we have learned through the pandemic, this infrastructure is essential.  From an economic development perspective, MetroNet’s presence will create jobs not only for the company, but also within Fayetteville and Greenville.  Finally, with broadband funds becoming available at the federal and state level to insure digital equality, MetroNet will have a seat at the table in both Fayetteville and Greenville to discuss future initiatives to address the digital divide as public/private partners.

To learn more about MetroNet:

CLIC Endorses federal Community Broadband Act (HR 1631)

The Coalition for Local Internet Choice endorses H.R. 1631, the “Community Broadband Act of 2021,” which Reps. Anna G. Eshoo (D-Calif.) and Jered Golden (D-Maine), and Sen. Cory Booker (D-N.J.), introduced on March 8, 2021.  This legislation will remove state roadblocks to community broadband initiatives and public-private broadband partnerships while at the same time safeguarding incumbent service providers from discriminatory local regulation.  It mirrors language found in H.R. 2, passed last year by the full House of Representatives.

Nineteen states have laws that restrict local communities from developing their own advanced communications networks or from entering into partnerships to obtain them. These restrictions shield incumbent providers from competition and tie the hands of communities that want to improve their broadband options, particularly in unserved or underserved areas.

CLIC President, Jim Baller, said: “The pandemic has made it unmistakably clear that state restrictions on local broadband options are bad for the communities involved, bad for the private sector, and bad for America’s global competitiveness.  The nineteen existing state barriers should never have been enacted, and when H.R. 1631 passes, these laws will be no longer be able to thwart local decision-making involving this essential infrastructure.”

CLIC CEO Joanne Hovis added: “While the resulting harm of these inhibiting state laws to local communities is obvious, the injury to the private sector may not be. These state prohibitions hurt the private sector in multiple ways. They prevent private companies from making timely sales of equipment and services to public networks. They impede private companies from using advanced public networks to offer businesses and residential customers modern and innovative products and services. They thwart economic and educational opportunities used to build a skilled workforce that benefit existing and new businesses across the state.  They also discourage private companies from entering into creative public-private partnerships that offer local internet choice.”

As Senator John McCain said on the US Senate floor in 2005 in the course of introducing a predecessor of H.R. 1631, “As a country, we cannot afford to cut off any successful strategy if we want to remain internationally competitive.”  

Enjoy listening to CLIC’s Supersession #3: Broadband Partnerships and Federal and State Incentives: A Force Multiplier

The third conversation in CLIC’s 2020 Broadband Supersession series deals with “Broadband Partnerships and Federal and State Incentives: A Force Multiplier.” As COVID continues, we seek advice on how local communities have been working with private partners and maximizing sometimes scarce resources by combining funds at the federal, state and local levels to deploy critical broadband services. Join CLIC’s CEO and moderator of this session, Joanne Hovis, as she interviews representatives from these sectors about their creative approaches, lessons learned, and their predictions about the future. Speakers include Lisa Youngers, then Executive Director, Fiber Broadband Association, Kenrick Gordon, Director of the State of Maryland Governor’s Office of Rural Broadband, Charlotte Bewersdorff, Vice President for Community Engagement at the MERIT Network in Michigan, and Darrell Maynard, CEO of Eastern Telephone & Technologies from Kentucky.

Supersession #3 can be watched here, downloaded here, or just listened to here.

Arkansas State Legislature Significantly Expands Local Broadband Options

by Jim Baller, CLIC President

As the Arkansas General Assembly recently found in enacting SB74, “without access to voice, data, broadband, video, and wireless telecommunications services, citizens of Arkansas also lack access to healthcare services, education services, and other essential services; and that this act is immediately necessary to allow government entities to provide high quality voice, data, broadband, video, and wireless telecommunications services to their citizens.”  As a result, the Arkansas Senate voted 35-0 and the House voted 94-0 to give government agencies substantial new powers to help accelerate the deployment, adoption, and use of advanced communications services and facilities across the State. 

Designated as emergency legislation, SB74 moved quickly through the legislature and the Governor’s office.  It was introduced by five Republican sponsors – Senators Ricky Hill, Breanne Davis, and Missy Irvin, and Representatives Brian Evans and DeAnn Vaught – and it had the strong support of Governor Asa Hutchinson, who signed the bill into law — as Act 67 — on February 4, 2021.  As a result of the enactment of SB74, Arkansas now –

 ·       Allows government entities that own electric systems or cable television systems to provide communications services or facilities, now or in the future, directly or indirectly, with the exception of basic local exchange service;

·       Allows government entities to provide telecommunications services or facilities to support a wide range of emergency management, law enforcement, education, and healthcare activities; 

·       Allows government entities and their private partners to apply for and use grants or loans from programs that focus on extending services to unserved areas;

·       Allows government entities to “acquire, construct, furnish, equip, own, operate, sell, convey, lease, rent, let, assign, dispose of, contract for, or otherwise deal in facilities and apparatus” used to provide any or all of the following services: voice, data, broadband, video, or wireless telecommunications services;

·       Allows government entities to issue  general obligation bonds or impose special taxes to acquire or construct communications facilities, provided that the government entities (1) “partner, contract, or otherwise affiliate with” an entity that is experienced in such matters; (2) conduct due diligence in accordance with industry standards for such projects and in compliance with legal requirements for the kind of funding involved, (3) hold a public hearing, after giving at least 10 days prior public notice; and (4) afterward the hearing, “cause an election to be held as required by law.”  These requirements do not apply to government entities that qualify as owners of electric or cable TV systems; as providers of services relating to energy management, law enforcement, education, or health care.; or as providers of services pursuant to grants or loans under programs focusing on unserved areas.

Let’s hope that this big step in the right direction in Arkansas will be a harbinger of similar legislative actions across America to remove restrictions on local internet choice.  

Start 2021 by Listening to CLIC’s Broadband Partnership Conversation #2: Identifying and Selecting Your Broadband Partner

The second conversation in CLIC’s Broadband supersession series deals with “Identifying and Selecting Your Broadband Partner.” As COVID continues to disrupt school and work, local communities are stepping up to catalyze the deployment of this critical infrastructure, often with private partners. To learn how other communities are approaching this task, we invite you to watch, or simply listen to, the second of our highly regarded supersessions from the Broadband Communities conference, moderated by Catharine Rice, CLIC Project Director, on September 22.

Catharine interviews representatives from three different companies involved in broadband partnerships around the country and one local community: Google Fiber (David Finn), TING (Monica Webb), C-Spire (Ben Moncrief) , and the City of Fresno, California (Byron Horn). She asks them to describe their company and their role at their company, one of their favorite broadband partnerships and why that is their favorite, and what their local community partner did to make that partnership happen and endure.

Supersession 2 can be watched here, downloaded here, or just listened to here.

Start 2021 by Listening to CLIC’s Broadband Partnership Conversations

As COVID continues to disrupt school and work, and as a new Congress and president take office, we expect the country’s broadband gaps to receive heightened attention—and funding.

Local communities will continue to play a critical role in infrastructure deployment, often with private partners. With this in mind, we are devoting our next three blog posts to issues related to identifying and attracting suitable partners, as captured by our September BBC workshops.

As a starting point, we invite you to watch or listen to the first of our highly regarded supersession moderated by CLIC President Jim Baller on September 22. That session featured speakers who covered a range of important topics:

·       Digital C describes how the non-profit called One Community created a fiber physical network, then sold it to the private sector;

·       Allo Communications is looking for communities that “want fiber”;

·       MetroNet is looking for communities who want to work with them, across the board, so that its complex fiber construction can go smoothly;

·       Facebook wants to replicate the model it used in North Carolina to lease the excess fiber capacity along its data center routes to nonprofits or local communities.

Supersession 1 can be watched here, downloaded here, or just listened to here.