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. 

Studies consistently show that the primary reason millions of households do not have home Internet service boils down to affordability.

Research by EducationSuperHighway indicates that of the estimated 28.2 million households in the U.S. that do not have high-speed Internet service, 18 million of those households (home to 48 million Americans) are not online because the cost of service is simply too expensive.

But now, thanks to a recently published study by the Federal Reserve Bank of New York, broadband affordability advocates may be able to more accurately measure the elusive nature of affordable broadband costs.

The study also examines how to better pinpoint contributing factors like the state of local infrastructure and how lower-performing broadband access technologies powerfully influence low-income households' decision to sometimes choose cellular service-only over home Internet service.

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“Broadband Affordability: Assessing the Cost of Broadband for Low-and-Moderate Income Communities in Cities” provides a research-driven lens on how to measure broadband affordability neighborhood by neighborhood, city to city.

“While national and state-level analyses have helped highlight the digital divide,” the study’s author Ambika Nair writes, “measures of broadband affordability at the community level are limited.”

*This is the first installment of an ongoing series we are calling Connected Complex looks at how states, local communities, and Internet service providers are working to address the often complex challenges involved in bringing high-speed Internet access to multi-dwelling units.

Massachusetts state leaders have announced a new $31.5 million investment to bring reliable, high-speed Internet access to residents in affordable and public housing statewide.

A key part of the major new investment initiative focuses on something that’s particularly challenging in the northeast: updating long outdated wiring in multiple-dwelling-units (MDUs) like apartments, condos, and housing developments, many of which were built before the advent of the Internet.

The funds are being provided by the Massachusetts Broadband Office’s (MBO) Residential Retrofit Program, which aims to deploy state-of-the-art broadband infrastructure to public and affordable housing properties across Massachusetts. MBI’s funding, in turn, was largely made possible by the 2021 American Rescue Plan Act (ARPA).

In partnership with the Massachusetts Broadband Institute (MBI), Gov. Maura Healey’s office awarded the grant money to four Internet service providers: Aervivo, Archtop Fiber, Comcast, and Community Broadband Networks FLX (CBN-FLX). All told, the funding is poised to deliver broadband access to 13,700 housing units across 60 Massachusetts municipalities.

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).”

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.

Legislation that would require ISPs operating in Massachusetts to offer qualifying low-income households high-speed Internet service for $15 per month is set to have its first legislative hearing.

The hearing is slated to run from 11 am to 1 pm ET today before the Massachusetts Legislature’s Joint Committee on Telecommunications, Utilities, and Energy. Committee members will hear testimony on multiple bills, including two companion pieces of legislation known as An Act Preserving Broadband Service for Low-income Consumers – S.2318 (filed by State Sen. Pavel Payano) and H.3527 (filed by State Rep. Rita Mendes).

The proceedings can be viewed here.

Inspired by New York Law

The hearing in Massachusetts comes as similar legislation is being considered by state lawmakers in Vermont and California – all three of which are modeled on New York’s Affordable Broadband Act which, after numerous legal challenges, went into effect in the Empire State in January of this year after the US Supreme Court declined to intervene and overturn a U.S. Appellate Court ruling that upheld the law.

Like the New York law, the bill being proposed in Massachusetts requires ISPs operating in Massachusetts to offer qualifying low-income households high-speed Internet service for $15 per month.

However, the Massachusetts bill set the minimum speed at 100 Megabits per second (Mbps) download to mirror the increased FCC definition for minimum broadband speeds that had been raised from the previous benchmark of 25/3 Mbps, which was the federal standard when the New York law was written.

*In partnership with Broadband Breakfast, the following story by Broadband Breakfast Reporter Jake Neenan was originally published here.

The broadband industry keeps trying to get the Supreme Court to help them, and the Supreme Court keeps saying no.

The high court said again Monday that it will not hear the industry’s challenge to a New York law capping broadband prices for low-income customers. The denial Monday...keep(s) the door open for other states considering similar laws.

State legislators in at least California and Massachusetts are already considering similar laws.

ISPs had told justices they feared states doing so, writing that if the law were upheld “many state legislators and bureaucrats would surely then follow New York’s lead.”

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New York’s Affordable Broadband Act requires monthly prices of no more than $20 for households participating in programs like SNAP and Medicaid. ISPs with less than 20,000 subscribers were tentatively exempted, but large ISPs now bound by the law cover 95 percent of the state’s homes and businesses.

Charter and Altice already offered compliant plans per agreements with the state, and Verizon had a similar affordable plan with more stringent eligibility requirements. The law went into effect Jan. 15.

*In partnership with Broadband Breakfast, we occasionally republish each other's content. The following story by Broadband Breakfast Reporter Blake Ledbetter was originally published here.

A New England ISP trade group is pushing back against a Massachusetts bill that seeks to cap broadband rates for low-income households.

The Massachusetts bill mandates that all state-based ISPs create and promote an affordable broadband plan or risk a civil penalty of up to $1,000 per violation.

The requirement would apply to wireline, fixed wireless, and satellite providers, both private and public. If passed, the bill would require ISPs to offer a 100 Mbps download speed plan for $15 a month “inclusive of any recurring taxes and fees.”

“NECTA is concerned on any state effort to establish rate regulation over broadband products and service,” said Anna Lucey, spokeswoman for the New England Connectivity and Telecommunications Association, a group which includes Comcast and Charter.

She said NECTA members already offer low-income broadband programs that include significantly reduced rates for qualifying households in the state.

“The rate regulation proposed in this bill is not only unnecessary but would be counterproductive—introducing significant inefficiencies, imposing substantial additional compliance costs and uncertainty for ISPs, and ultimately distracting from the shared goal of connecting as many Massachusetts residents as possible to robust and affordable broadband services,” she added.

The bill, sponsored by Sen. Pavel Payano (D) and Rep. Rita Mendes (D), could also run into trouble with the Federal Communications Commission if Chairman Brendan Carr intends to restrict states that interfere with the agency’s light-touch approach to broadband regulation.

The bill was offered as a response to the end of the federal Affordable Connectivity Program (ACP) in May 2024, which served 368,000 families in the state.

*The Massachusetts law mirrors a similar bill now in effect in New York.

With New York’s Affordable Broadband Act (ABA) now in effect, lawmakers in other states are filing similar legislation that requires large Internet Service Providers to offer low-cost plans for financially-strapped households in their respective states.

In Massachusetts, State Sen. Pavel Payano filed a bill earlier this month similar to New York’s law that seeks to establish a $15/month plan for low-income households in the Bay State.

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Then, earlier this week, California Assemblymember Tasha Boerner introduced Assembly Bill 353 that would mandate ISPs “make affordable home Internet plans available to California residents,” Boerner’s office said in a press release.

“Right now, families are struggling to afford essential services, like the Internet,” Boerner said in a press statement.

Speaking to why passing an affordable broadband law was important, Boerner put it in plain terms, noting that “households in our state don’t have support to pay for a basic home Internet service plan. We are talking about kids not being able to do homework at home, parents having to go to libraries to apply for jobs, and people not having access to do basic things, like telehealth.”