[National-fiber-coalition] My take on these provisions

Michael Romano mromano at ntca.org
Wed Jul 28 17:33:29 PDT 2021

On Ernesto’s points -

It’s hard to see them running out of $40B before they get through all of the 25/3 areas so they should get to 100/20 – but you’re right in that stopping at 100/20, this will likely push buildout into WISP/DSL areas and many cable areas could be left untouched.  At the same time, in rural areas at least, cable networks are typically only in the small towns – so I wouldn’t be shocked to see them still face some competitive pressures if someone is literally building a fiber network all around the town with federal funding. Heck, people will likely build into the town on their own at that point to pick up scale, and the 80% unserved metric may facilitate that even more.  So I suspect where this protects 100/20 networks is probably more in urban and suburban areas, and this still will create at least indirect competitive pressure in rural towns.

The text on what networks should be prioritized for funding is probably as good as one could have hoped for once we knew it was going to get watered down.  But the effectiveness of the language really will turn ultimately on what NTIA and states choose to do with it – there’s a lot of wiggle room to weigh heavily in favor of fiber and scalable networks.  But as we saw in RDOF, some will claim they can do ANYTHING with other technologies too to wedge themselves into a priority class if the agency lets them.  So, to your “good enforcer” point below, how effective the priorities in this text are really will depend in the end on NTIA and the states using this language to its fullest potential vs allowing it to be turned into RDOF Redux because technological neutrality.

As for Angie’s point, I agree – these are changes on the margins of mapping timing.  They speed up challenges slightly and give people a “start your engines” notice on mapping.  Frankly, given supply chain concerns, I don’t think it’s the worst thing in the world for this $ to get stacked behind the new maps.  If you ordered fiber tonight, unless you’re a big buyer, you wouldn’t get it until sometime in the fall of 2022 anyway – just in time for the first frost in many northern states to preclude construction until spring 2023 . . . the fiber marketplace needs time itself to ramp for this and catch back up on the backlog already in place.

From: National-fiber-coalition <national-fiber-coalition-bounces+mromano=ntca.org at lists.eff.org> On Behalf Of Angie Kronenberg
Sent: Wednesday, July 28, 2021 8:25 PM
To: Ernesto Falcon <ernesto at eff.org>; national-fiber-coalition at lists.eff.org
Subject: Re: [National-fiber-coalition] My take on these provisions

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The last mile grants (and amounts for each state) are still dependent on the FCC completing its maps, and there are changes to the mapping requirements that indicate it is expediting FCC mapping process, but I don’t believe they will really speed up the process.  But I’m curious if others agree with this assessment.

Here are those changes—
(E) Expediting broadband data collection activities.—
(i) Deadline for resolution of challenge process under broadband data act.—Section 802(b)(5)(C)(i) of the Communications Act of 1934 (47 U.S.C. 642(b)(5)(C)(i)) is amended by striking “challenges” and inserting the following: “challenges, which shall require that the Commission resolve a challenge not later than 90 days after the date on which a final response by a provider to a challenge to the accuracy of a map or information described in subparagraph (A) is complete”.
(ii) Paperwork reduction act exemption expansion.—Section 806(b) of the Communications Act of 1934 (47 U.S.C. 646(b)) is amended by striking “the initial rule making required under section 802(a)(1)” and inserting “any rule making or other action by the Commission required under this title”.
(iii) Implementation.—The Commission shall implement the amendments made by this subparagraph as soon as possible after the date of enactment of this Act.

There’s also this language about the maps but it’s not clear to me that it really changes the current trajectory of the FCC’s mapping process:

(a) Definition.—In this section, the term “Commission” means the Federal Communications Commission.
(b) Provision of Information.—A broadband provider shall provide the Commission with any information, in the format, type, or specification requested by the Commission, necessary to augment the collection of data by the Commission under—
(1) title VIII of the Communications Act of 1934 (47 U.S.C. 641 et seq.); or
(2) the Form 477 data collection program.
(c) Notice of Initial Broadband DATA Collection Filing Deadline.—The Commission—
(1) shall provide notice to broadband providers not later than 60 days before the initial deadline for submission of data under section 802(a)(1)(A) of the Communications Act of 1934 (47 U.S.C. 642(a)(1)(A)); and
(2) notwithstanding any prior decision of the Commission to the contrary, shall not be required to provide notice not later than 6 months before the initial deadline described in paragraph (1).

The middle mile grants still have language that allow FCC map, state map, or speed and usage surveys to be used. This may permit middle mile grants much faster than the last mile grants.

I also no longer see reasonable permitting fees as part of the last mile grant process, but middle mile still has some language that’s likely helpful for those areas that have reasonable fees or waive them as part of process.

Angie Kronenberg
Chief Advocate and General Counsel
(301) 509-5398 (mobile)*
akronenberg at incompas.org<mailto:akronenberg at incompas.org>
*During the coronavirus pandemic, the INCOMPAS team is working from home.  As such, it’s best to use my mobile number to reach me by phone.  Thank you!

From: National-fiber-coalition [mailto:national-fiber-coalition-bounces+akronenberg=incompas.org at lists.eff.org] On Behalf Of Ernesto Falcon
Sent: Wednesday, July 28, 2021 8:03 PM
To: national-fiber-coalition at lists.eff.org<mailto:national-fiber-coalition at lists.eff.org>
Subject: [National-fiber-coalition] My take on these provisions

Here are the things that leap out to me

Unserved – 25/3 or down.
Underserved – Lacking 100/20.

In essence, government money will only be going to areas that are rural or DSL/WISP markets
Government money will not go to areas covered by a cable monopoly (ie cities) except for their low income pockets.

But for those city markets, it appears the lean is heavily into regulation with the “digital discrimination” section, which carries some very broad implications if federal law (regardless of the classification of broadband) will now consider an equal right to broadband services of subscribers. Still digesting that piece, but I’ll be honest I’m surprised AT&T/cable were unsuccessful in stripping it out (unless they do before the night is out, anything is still possible there). From an administrative law standpoint, that’s a big one since it won’t require Title II reclassification.

On page 3 you have the following for projects building 100/20 mbps, which to me all reads fiber as the priority or at a minimum not building on the cheap floor/ceiling approaches to broadband. I’m still trying to understand who would reject such approaches (namely cable DOCSIS 3.0, Starlink, AT&T/Tmobile fixed wireless, older hardware WISPs), because having good law is only going to matter if you have a good enforcer.

(I) Priority broadband project.—The term “priority broadband project” means a project designed to—
(i) provide broadband service that meets speed, latency, reliability, consistency in quality of service, and related criteria as the Assistant Secretary shall determine; and
(ii) ensure that the network built by the project can easily scale speeds over time to—
(I) meet the evolving connectivity needs of households and businesses; and
(II) support the deployment of 5G, successor wireless technologies, and other advanced services.

On buildout timeline, the law requires 4 year plans unless circumstances require more time, and the waivers are pretty broad where I am less worried about supply chain delays for smaller fiber entities. An earlier cable bill basically said 4 years with no exception, and I’m glad to see that removed from consideration.

On latency, the bill proposes - (II) with a latency that is sufficiently low to allow reasonably foreseeable, real-time, interactive applications
As well as be required to offer a “low cost” offering with the applicant suggesting what is “low cost” in their application. It does not appear anywhere that the government has a role in defining low cost other than what applications it accepts in the bidding process. There is a decent amount of discretion by the NTIA to reject a “not good enough” low cost offering too it seems but “no rate regulation,” which feels like a contortion act.

On USF – FCC must submit a report to Congress about reforming USF.
Digital Equity Act appears included along with a lot of funding for the creation of digital equity offices at the state level.

Middle mile grants – Essentially the funding of open access middle mile (albeit limited funds). Requirements are as follows belo

(A) connecting middle mile infrastructure to last mile networks that provide or plan to provide broadband service to households in unserved areas;
(B) connecting non-contiguous trust lands; or
(C) the offering of wholesale broadband service at reasonable rates on a carrier-neutral basis.
On EBB, the law converts the long term program from a $50 subsidy to a $30 subsidy with a lot of new rules to regulate how it operates. I think $30 will probably still over compensate some providers without a stronger understanding of providers costs.

My understanding is other provisions that are less contentious are outside this draft as well.

What else are people catching here?

Ernesto Omar Falcon
Senior Legislative Counsel
Electronic Frontier Foundation
Office: 415 436 9333 ext. 182
Cell: 202 716 0770

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