Legal analysts are questioning the recent assertion by the head of the National Telecommunications and Information Administration (NTIA).

NTIA administrator Arielle Roth said last week that the agency she oversees will withhold federal broadband deployment funds from states that have laws enforcing net neutrality or that have enacted affordable broadband legislation similar to New York’s Affordable Broadband Act.

As the assistant secretary overseeing the $42.5 billion Broadband Equity, Access, and Deployment (BEAD) program, Roth’s legal reasoning is striking.

All the more so given that the New York Affordable Broadband Act that requires Internet service providers in the Empire State to offer a low-cost broadband service plan to income-eligible households has been upheld as Constitutional – a case in which the Supreme Court twice declined to intervene and overturn.

Yet, last week in speaking before the conservative Hudson Institute, Roth offered remarks that have legal observers scratching their heads in bewilderment. During her speech, Roth said:

“Consistent with the law, which explicitly prohibits regulating the rates charged for broadband service, NTIA is making clear that states cannot impose rate regulation on the BEAD program. To protect the BEAD investment, we are clarifying that BEAD providers must be protected throughout their service area in a state, while the provider is still within its BEAD period of performance. Specifically, any state receiving BEAD funds must exempt BEAD providers throughout their state footprint from broadband-specific economic regulations, such as price regulation and net neutrality.”

The stakes are high for broadband affordability advocates across the nation. 

The California Public Utilities Commission (CPUC) is poised to include new broadband affordability requirements as part of the state’s looming approval of Verizon’s massive $20 billion merger with Frontier Communications, even as some consumer advocacy groups worry the changes may not go quite far enough to hold Verizon accountable.

The CPUC’s Public Advocates Office has struck a partial settlement with Verizon that the state hopes will take some of the sting out of the telecom industry’s latest consolidation spree.

Verizon’s $20 billion proposed merger with Frontier would merge two of the nation’s top four traditional phone companies, resulting in a telecom giant with assets across 31 states. The merged new company would have more than 9.6 million customers with a fiber network that ultimately passes more than 25 million fiber homes and businesses.

While the two companies don’t directly compete, Verizon’s political influence and market power will still increase. Both companies have long been criticized for lobbying to undermine U.S. broadband competition, then leveraging the resulting regional market failure to jack up consumer costs and neglecting aging DSL network upgrades and repairs.

The mystery of who and what killed the California Affordable Home Internet Act is coming into view.

As a California lawmaker hinted when the bill was abruptly withdrawn in June, the evidence seems to be pointing to the new leadership now directing the National Telecommunications and Information Administration (NTIA) – the agency administering the $42.5 billion federal BEAD program to expand Internet access.

In a recently released FAQ published by the NTIA this week, a corroborating clue has emerged.

And what may be the smoking gun is a bullet buried on page 48, under section 3.29, after the question: "May an Eligible Entity (states) require a specific rate for the low-cost service option (LCSO) when required by state law?”

NTIA's answer:

“No. The IIJA prohibits NTIA or the Assistant Secretary from engaging in rate regulation. Because the Assistant Secretary must approve the LCSO in the Final Proposal, the rate contained may not be the result of rate regulation. The RPN (Restructuring Policy Notice) addressed this fundamental flaw in the BEAD NOFO. The RPN eliminated BEAD NOFO requirements dictating price and other terms for the required low-cost service option.”

“Per the RPN, states may not apply state laws to reimpose LCSO requirements removed by the RPN. More specifically, the RPN ‘prohibits Eligible Entities from explicitly or implicitly setting the LCSO rate a subgrantee must offer’ (BEAD Restructuring Policy Notice, p.7). Violation would result in rejection of the Final (BEAD) Proposal (emphasis added).”

In the wake of a federal abandonment of most meaningful Internet equality efforts, California municipalities continue to take the fight for equitable broadband access into their own hands. 

That includes Sonoma County, California, where county officials have freshly greenlit expanded plans to provide free broadband access to low income residents.

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Target: Affordable Housing

The Sonoma County Board of Supervisors recently announced that it has approved a list of new affordable housing sites that are eligible to receive free Internet for one year.

According to the county, 556 low-income Sonoma County households across 10 different housing locations should qualify for the free broadband service.

The deployments are being made possible by the 2021 American Rescue Plan Act (ARPA), which continues to result in some fairly transformative fiber deployments countrywide.

“The Board has prioritized finding creative solutions to broadband infrastructure development in Sonoma County,” Board of Supervisors Chair Lynda Hopkins says of the effort.

“This free internet program is a step toward equity as we continue to pursue public funding and strategic partnerships that can finally close the digital divide facing many of our shared communities.”

Last week, a California Assemblymember who had sponsored legislation for a broadband affordability law abruptly withdrew the legislation. 

But what really killed the broadband affordability bill in California? Was it opposition to the proposed legislation from within the state or pressure from the Trump administration?

The Bill Was Advancing Until…

Modeled on New York’s Affordable Broadband Act (ABA), the California Affordable Home Internet Act was first introduced in January. It aimed to require Internet service providers that operate in the Golden State to offer a $15 per month broadband service plan for income-eligible households.

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The proposed legislation was introduced as AB 353 by Assemblymember Tasha Boerner and was initially supported by the California Alliance for Digital Equity (CADE).

Over the intervening months, CADE and proponents of the bill offered resources and recommendations on how the bill could be made more effective than the ABA, hoping to avoid the pitfalls that advocates were seeing with the rollout and implementation of New York’s law.

On June 4, the California bill advanced through the state Assembly and moved on to the state senate by a 52-17 margin.

California lawmakers’ efforts to pass a new law mandating affordable broadband access is at risk of being destroyed by industry lobbying. California insiders say the changes are so dramatic they may wind up making broadband affordability in the state worse – undermining years of digital equity activism and discarding a rare opportunity to bridge the digital divide.

The California Affordable Home Internet Act (AB 353), introduced by Assemblymember Tasha Boerner last January, would require that broadband providers in the state provide broadband at no more than $15 per month for low-income households participating in a qualified public assistance program.

The original legislation mandated that state residents should be able to receive $15 for all ISPs for broadband at speeds of 100 megabit per second (Mbps) downstream, 20 Mbps upstream. The proposal mirrored similar efforts by New York State which opened the door to other state efforts after the Supreme Court recently refused to hear a telecom industry challenge.

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“I want to get something fair and reasonable that helps those who need it most,” Boerner said in a press release. “AB 353 will fill the gap and ensure our children can turn in their homework, families can get access to telehealth, and apply for jobs online.”

On June 4 a vote moved the legislation through the state Assembly and on to the state senate by a 52-17 margin.

Just 40 miles north of the heart of Silicon Valley, the City of Oakland has its sights set on implementing an ambitious Broadband Master Plan.

Dubbed the OaklandConnect project – unanimously approved on May 20 by the Oakland City Council – the plan calls for the construction of a city-owned open access fiber network to expand affordable broadband connectivity to over 33,000 households that city surveys indicate are languishing without home Internet service.

While Oakland is served by Comcast and AT&T mostly (with a smattering of Sonic and T-Mobile hotspots), the service in many areas is substandard, expensive, or both – in a city where surveys indicate affordability as the primary reason so many do not have home Internet service.

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Once the East Bay city of 436,000 completes network construction, it would be one of the largest publicly-owned open access networks serving a major metro area in the nation – and may serve as inspiration for other large cities to follow suit with a model that’s been proven to bring affordable local Internet choice in monopoly-dominated markets.