This is the transcript for episode 270 of the Community Broadband Bits podcast. Professor Barbara Cherry goes into detail on the history of common carriage and telecommunications law. Listen to this episode here.

Barbara Cherry: It's been a mess. And part of the problem is restoring a more accurate understanding of our history.

Lisa Gonzalez: This is Episode 270 of the Community Broadband Bits podcast from the Institute for Local Self-Reliance. I'm Lisa Gonzalez this week Christopher talks with attorney and legal scholar Barb Cherry about common carriage. We often talk about common carriage as it relates to telecommunications. And this week Christopher and Barb get into the policy. But most of us aren't aware of the legal history behind common carriage. Barb describes how its origins relate to the way it's applied today and how we need to consider the past as we move toward the future. Now here's Christopher and Barb Cherry.

Christopher Mitchell: Welcome to another edition of the Community Broadband Bits podcast. I'm Chris Mitchell from the Institute for Local Self-Reliance up in Minneapolis. Today I'm speaking with Barb Cherry a lawyer and a Ph.D. in communications who worked for the FCC for five years has 15 years in industry but is now a professor at the media school at Indiana University. Welcome to the show.

Barbara Cherry: Thank you, Chris.

Christopher Mitchell: Barb, one of the things I've warned you about. I'll tell the audience that you have an incredible amount of knowledge and you're very passionate. And so if this seems like it's getting a little bit too you know, friendly I might poke you a little bit to get some of that passion up on the surface.

Barbara Cherry: No problem.

Christopher Mitchell: Let's talk about common carriage which is something that I've never heard anyone explain as well as you have and and maybe you can just start with giving us a sense of the historical origins of common carriage in general.

As fall sets in, the Burlington Telecom Advisory Board (BTAB) is still working on choosing a buyer for the Vermont city’s municipal network. The review of the four semi-finalists continues, concerned people express their opinions and BT’s work benefits the community.

High-Speed For Low-Income

In August, BT officials announced that they would be the first ISP in the state of Vermont to offer high-speed Internet to low-income residents through the federal Lifeline program. Lifeline provides a $9.25 monthly credit for qualifying households; BT will be offering symmetrical 25 Megabit per second (Mbps) service for $9.95 per month, leaving the balance for subscribers.

According to BT General Manager Stephen Barraclough, BT is able to participate in the program due to previous upgrades to the infrastructure:

“Because we have a gigabit network, because over the past three, four, five years we’ve essentially swapped out the majority of equipment that’ll allow a thousand meg to go to every home we have lots and lots of equipment that we’ve actually taken off the side of homes that is more than capable of delivering more than 25 meg symmetrical.  We have lots and lots of routers that can still be used. So if you look at it from a marginal cost perspective, how can we afford to do this, really there’s very little incremental out-of-pocket cost over and above what we already have.”  

Surpassing Goals

August was also an exceptional month for subscriber numbers at BT. In addition to reaching a new height for the number of subscribers added in one month, BT eclipsed their original goal of 7,000 total subscribers. As of the end of August, the network served 7,136 members of the Burlington community.

On their website, BT celebrated with this message for the community:

This is the transcript for episode 268 of the Community Broadband Bits Podcast. Jon Chambers of Conexon once again joins the show. This time Jon dives into the details of the Connect America Fund program and discusses the upcoming Connect America Fund auction. Listen to this episode here.

Jon Chambers: Rural Americans, have the same aspirations, the same needs, the same uses of the Internet as everyone else. It shouldn't surprise anyone when I say, rural Arkansans, rural Missourians subscribe to gigabit services too. It does surprise people. It surprises people at the FCC, it surprises policy makers. Doesn't surprise people who live and work and spend their lives in rural America.

Lisa Gonzalez: This is episode 268 of The Community Broadband Bits Podcast from The Institute For Local Self-Reliance, I'm Lisa Gonzalez. As the question of how best to bring high quality Internet access to rural America becomes more pressing, rural cooperatives are rapidly taking a leading role. This week's guest, Jon Chambers, works with electric cooperatives that decide they want to offer high speed connectivity. Jon spent time working for the FCC and has a special understanding of how the agency approaches review and funding for telecommunications. In this conversation, he and Christopher talk about the Connect America Fund. Learn more about Jon's firm, visit their website at conexon.us. Now, here's Christopher and Jon Chambers from Conexon.

Christopher Mitchell: Welcome to another edition of The Community Broadband Bits Podcast. I'm Chris Mitchell at The Institute For Local Self-Reliance. Today, I'm once again with Jon Chambers, a partner at Conexon. Welcome back to the show Jon.

Jon Chambers: Thank you Chris. Thanks for inviting me.

Christopher Mitchell: You've been on the show multiple times recently, talking about how rural electric cooperatives can basically solve this problem for all of rural America. Do you want to briefly remind us what Conexon is?

Large, corporate providers like AT&T have to make shareholders happy, which is why they shy way from investing in regions where they don’t expect much profit. Routinely, those areas include sparsely populated rural communities and urban neighborhoods traditionally considered low-income. Often low-income neighborhoods also include a high percentage of people of color. Attorney Daryl Parks of ParksCrump, LLC, recently filed suit with the FCC on behalf of three residents in Cleveland who are victims of AT&T's "digital redlining."

The Data Tells The Story

In March, the National Digital Inclusion Alliance (NDIA) and Connect Your Community (CYC) released a report on digital redlining in low-income neighborhoods in Cleveland. “Digital redlining” refers to AT&T’s investments in infrastructure, which improve connectivity in areas where they serve, except for neighborhoods with high poverty rates. CYC and NDIA analyzed form 477 data submitted by the telecommunications company and noticed a pattern. The revelations in that report helped the plaintiffs understand their situation and choose to ask the FCC to look deeper into AT&T's questionable business practices.

The event that inspired the analysis was the AT&T DirecTV merger. As part of the merger, AT&T agreed to create a low-cost Internet access program for customers under a certain income level. The speed tier was only 3 Megabits per second (Mbps) download, but AT&T infrastructure investment in Cleveland lower income neighborhoods was so outdated, residents could not obtain those minimal speeds. As a result, they were deemed ineligible for the program.

The Case

The complainants are three African-American residents in Cleveland’s lower income neighborhoods who can’t take advantage of the affordable program mandated by the merger because they can only access speeds of up to 1.5 Mbps download or less. Without the infrastructure to connect at higher capacity, they’ve ended up paying higher rates for slower Internet access.

In a press release on the complaint, Parks stated:

Louisville has overcome a tall hurdle in its efforts to bring better connectivity and more competition to the community through local control. On August 16th the U.S. District Court for the Western District of Kentucky supported the city’s one touch make ready (OTMR) ordinance. AT&T challenged the ordinance in court, but their arguments fell flat and court confirmed that the city has the authority to manage its rights-of-way with OTMR.

State Law

AT&T’s claim based on state law asserted that the city was overstepping its authority by enacting the OTMR ordinance because it was impinging on Kentucky Public Service Commission jurisdiction. AT&T attorneys argued that, according to state law, the PSC has exclusive jurisdiction over utility rates and services, but the court found that argument incorrect.

Within the state law, the court found that the OTMR ordinance fell under a carve-out that allows Louisville to retain jurisdiction over its public rights-of-way as a matter of public safety. The ordinance helps limit traffic disruptions by reducing the number of instances trucks and crews need to tend to pole attachments. The court wrote in its Order:

AT&T narrowly characterizes Ordinance No. 21 as one that regulates pole attachments. But the ordinance actually prescribes the “method or manner of encumbering or placing burdens on” public rights-of-way. … It is undisputed that make-ready work can require blocking traffic and sidewalks multiple times to permit multiple crews to perform the same work on the same utility pole…. The one-touch make-ready ordinance requires that all necessary make-ready work be performed by a single crew, lessening the impact of make-ready work on public rights-of-way. … Louisville Metro has an important interest in managing its public rights-of-way to maximize efficiency and enhance public safety. … And Kentucky law preserves the right of cities to regulate public rights-of-way. … Because Ordinance No. 21 regulates public rights-of-way, it is within Louisville Metro’s constitutional authority to enact the ordinance, and [the state law granting authority to the PSC] cannot limit that authority. 

Federal Jurisdiction

Cell phones as a substitute for home Internet service? That’s what the Federal Communications Commission (FCC) suggested in an August 2017 document. Buried within the Notice of Inquiry for the Section 706 Report, the FCC quietly proposed that mobile service could be considered broadband deployment.

In a recent article, Jon Brodkin at Ars Technica dove into why that suggestion is laughable. Mobile Internet service, especially at speeds less than 25 Megabits per second (Mbps) download and 3 Mbps upload, is not equivalent to high-speed home Internet service. 

This proposal also raises concerns for rural communities exploring funding options.

Overstating Rural Connectivity Has Consequences

If the FCC treats mobile Internet access as broadband deployment, rural areas will suddenly look better connected. On paper, the FCC statistics will show that rural America has sufficient Internet access, but the reality in the trenches will remain as it is today - poor connectivity in many rural communities.

A similar situation has already happened in Iowa, where the inclusion of satellite Internet service is now considered broadband access. The interactive FCC 2016 Broadband Deployment Map clearly shows that almost all of Iowa has high-speed Internet access via satellite. One can use satellite service to browse the web, but it has significant limitations, especially when uploading data.

We’ve all been lied to, but when we’re lied to by those we rely on, it’s the worst. Right now, we are all subject to a lie about our Internet access. That lie is rooted in the idea that the best way to move forward is to allow the free market to dictate our access to the Internet, along with the quality of services, privacy protections, and competition.

The big ISPs try to tell us “it’s a competitive market,” then they tell their shareholders competition is scarce. They tell legislators they fear competing against relatively small municipal networks and cooperatives that only serve singular regions but they have subscribers in vast swaths across the country. Federal decision makers tout the benefits of competition, but approve consolidation efforts by a few powerful companies that are already behemoths. This reality is The Big Lie.

What can we do about it? First, understand the cause of the problem. Next, share that understanding. We’ve created this short video to explain The Big Lie; we encourage you to share it and to check out our other resources. Our fact sheets and reports are a great place to start if you’re looking for a way to improve connectivity in your community. Don't forget to check out our other videos, too.