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Coercive Federalism and Broadband: New Opportunities and New Challenges for Local Governance

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Patrick Mulhearn
July 15, 2022

The Infrastructure Investment and Jobs Act (IIJA) is a rare and ambitious investment in our infrastructure that is also changing the ways governments consider and define their communities’ needs.

The Federal Government—via the IIJA—is investing $550B in new spending over five years, representing the largest infrastructure investment since the Federal-Aid Highway Act of 1956 allocated $25 billion ($272 billion in current dollars) to build a federal highway system. The Highway Act expanded the highway system by 1000 miles but the Act further changed how we approach a national infrastructure project by redefining the use and necessity of the highway system to the country.

Similarly, the IIJA has established broadband among more traditional infrastructure such as water and transportation. Broadband—and services related to it—are considered vital to the public interest such that under this new federal effort, community broadband deployment is no longer the exclusive purview of private interests.

New Federal Funding to Build Broadband Where It Needs to Go

$65 billion total is being made available over the next five years for investments in both physical network infrastructure, but also for helping people use online resources. This funding is intended for helping subsidize eligible households’ internet subscription—like Lifeline for telephones—and also to establish programs to teach people how to use basic online tools such as e-mail and banking. This funding is both building the infrastructure and then teaching people how to safely use it; while at the same time defining for communities what “need” looks like and establishing basic thresholds for acceptable service.

Access to that funding will rely on state and local governments navigating new requirements that ultimately will redefine the ways they both develop infrastructure projects and measure outputs and outcomes. Reporting requirements alone will require government to describe their communities in new ways such as “unserved” versus “underserved” or levels of community-wide broadband adoption.

Local governments must adopt policies that measure conditions such as digital literacy and access and adoption of broadband because a separate tranche of support will be made available to states specifically for improving digital equity. These statewide planning grants require states to work directly with local governments to both measure need and deploy solutions for solving those needs. Local governments will soon find themselves at the center of national planning efforts as they work to inform state plans and also develop community maps to direct state investments.

Newly developed rules around broadband funding define policy problems in new terms that will ultimately affect how local governments regulate data infrastructure, the policies and processes that require revision to accommodate this new regulatory strategy and add a new demographic dimension to public planning focused on areas that have been neglected by ISPs’ infrastructure investments.

The Federal Broadband Equity, Accessibility and Deployment (BEAD) program literally re-defines broadband: while the FCC for years has insisted that 25/2Mbps downloads are sufficient for “broadband”, the IIJA considers households with such connections to be “unserved”. By redefining what needs look like and matching those needs to funding, government will be able to direct investment to need—even if only for the next few years.

New Federal Incentives to Finally Get This Right

Delegating broadband infrastructure planning to the private sector has left clear gaps in service: a profit-centric deployment strategy has clearly led to uneven distribution of a vital utility. We have also failed to keep pace with our need because at the federal regulatory level—at least at the FCC—our description of “broadband” is archaic.

Two programs in the IIJA are set to radically change this status quo.

BEAD is a new $42.5 billion dollar program to do everything from build fiber to people’s homes to finance devices for them to access those new connections. BEAD and Digital Equity Act have created new standards for state and, ultimately, local governments to describe community data needs

The Enabling Middle Mile Broadband Infrastructure Program enhances this effort by focusing money for new middle-mile projects to areas that are considered “unserved” and “underserved” by existing infrastructure. This means that areas that have been neglected by ISPs will finally get some attention via government investment.

States will be delegated authority to oversee the disbursement of these funds, but to be eligible local governments will need to fundamentally change how they consider access and availability of data-delivery resources in their community. All these new criteria are in play for identifying needs for these projects, and the Federal government is now developing new maps to guide investments.

Using their own local knowledge, municipal and county governments will be able to challenge these maps to further influence how and where new infrastructure will be built—particularly for construction in areas that lack service. Investments by public agencies will develop infrastructure closer to a public utility intended to serve every household and business.

Local governments must assert their status in these discussions, though: while much of the funding for broadband in the IIJA is intended for public agencies, ISPs will also have an opportunity to tap these funds for their own projects. Without direct engagement with the states, local needs might once again be lost in the noise of ISPs hoovering up available funding.

Author: Patrick Mulhearn, MPA, is the director of broadband policy for CTC Technology & Energy, a public sector broadband consultancy. Prior to his work in the private sector, he was the policy director for a local government elected official in Santa Cruz, CA, where he focused primarily on policies relating to telecommunications and transportation infrastructure. He can be reached at [email protected]

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