Telecom Industry Rejects Conn. Broadband Proposal
State and local officials backed Connecticut broadband regulations proposed by Gov. Ned Lamont (D) that would require universal buildout while updating infrastructure rules. But telecom industry officials opposed HB-6442 as regressive overreach, at the livestreamed Joint Energy and Technology Committee hearing Tuesday. Anticipating federal net neutrality action, some Connecticut lawmakers questioned the need for SB-4. Telecom lawyers disagreed in recent interviews on how other states will be affected by last month’s ruling by U.S. District Court in Sacramento allowing California’s law to take effect.
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State agency officials supported Lamont’s proposal to set a Jan. 1, 2027, goal to get universal broadband with 1 Gbps download and 200 Mbps upload on average. It would require developing state maps, coordinating agencies and implementing infrastructure policies including dig once and one touch, make ready (OTMR). It would clarify that cities may provide broadband using a reserved “municipal gain” space on poles or underground ducts, an issue of long dispute (see 1912020062). COVID-19 made clear broadband is no longer a luxury but a “necessity," said Nick Simmons, Lamont's manager-strategic initiatives.
House Chair David Arconti (D) supported the governor’s proposal as a “very good start,” asking if Lamont had concerns about making buildout requirements without being able to keep internet rates low because the state lacks authority. Simmons agreed “our hands are tied” and said OTMR and streamline permitting required by the bill should reduce buildout costs. Rep. Harry Arora (R) asked if the measure might be “too heavy-handed” and picks technology winners. Simmons stressed that Connecticut must set ambitious goals. Sen. John Piscopo (R) raised concerns the bill is too regulatory.
The plan encourages municipal broadband and is “one of the best, well-thought-out broadband bills from any state,” said Economic and Community Development Commissioner Bob Knight. His town of Ridgefield has unreliable service from Comcast and too-slow speeds from Frontier Communications, said Knight: The bill lets towns turn to the Public Utilities Regulatory Authority (PURA) for help. The Connecticut Conference of Municipalities mostly supports the measure, said Advocacy Manager Donna Hamzy Carroccia.
Connecticut would be the “first state to impose an antiquated and regressive regulatory structure” on broadband that would reduce internet access, if HB-6442 is enacted, said Charter Communications Vice President-State Government Mike Chowaniec. It’s not a good use of taxpayer dollars and would discourage investment, he said. Nothing addresses the bigger issue of adoption, said Frontier Vice President-Government Michael Cicchetti. “All the bill does is overregulate the internet and increase costs to our customers.”
CTIA supports OTMR, but many other parts are “onerous” broadband mandates that conflict with federal law if applied to the wireless industry, said Director-State Legislative Affairs Lisa McCabe. The bill includes unlawful rate regulation of wireless carriers, preempted by Communications Act Section 332(c), she said. Mapping provisions may duplicate federal efforts, she added. Also preempted is SB-990 to ban broadband providers from imposing data caps until the end of the governor’s COVID-19 emergency declaration, McCabe said.
Lamont is stepping up because Connecticut has a broadband problem, and “nobody seems to be solving it,” said Rep. Stephen Meskers (D).
Net Neutrality
PURA would enforce open-internet and ISP privacy rules under SB-4.
“Suffering from net neutrality fatigue,” House ranking member Charles Ferraro (R) asked if the bill is now moot given President Joe Biden’s administration possibly considering a federal policy. Meskers said it seems tough, “commercially questionable” and an “overreach” to regulate net neutrality at the state level. Federal rules seem easier, he said.
Connecticut should wait and see what the Biden administration does, testified Boston College law professor Daniel Lyons. “At best, this bill could be superfluous,” or it might conflict with possibly coming federal rules, he said. Lyons thinks state net neutrality and ISP privacy laws are preempted, but conceded the recent court ruling on California’s law cast some doubt. SB-4 and similar state laws aren’t needed, plus the federal government may soon act, said CTIA Vice President-State Legislative Affairs Gerry Keegan.
Some expect ISP associations to appeal last month’s court ruling that denied ISPs a preliminary injunction against California’s law (see 2102230074). ACA Connects, CTIA, NCTA and USTelecom, plaintiffs in case 2:18-cv-02684, want congressional action. They didn’t comment Tuesday.
California
Expect industry to continue challenging the California law, as a ruling on a preliminary injunction by a district court is a preliminary order in an early stage of the litigation, said Davis Wright's David Gossett.
“State net neutrality laws that have been enacted and that are under consideration differ from one another,” so even if courts eventually uphold the California law on the merits and after any appeal, that wouldn’t necessarily mean that Vermont’s and other states' laws would survive challenges, the lawyer said. Debate over the legality of preempting state neutrality laws -- including California’s -- will likely reset if the FCC or Congress tries to set new federal rules or otherwise revisits net neutrality, he said.
It’s likely ISPs will appeal the district court ruling to keep fighting for the legal principle, said Public Knowledge Legal Director John Bergmayer. It’s the latest in a string of decisions finding the FCC doesn’t preempt states on broadband, leaving net neutrality advocates in a “relatively strong position now,” he said. State policies might have varying language, but “the basic question of preemption is the same across the board.”
Bergmayer sees appetite to pass more state laws, even with preemption possibly ahead from a Democratic federal government. State rules increase pressure to make “a good federal law, because it’s really hard to justify ... a policy that makes things worse for people in some states,” he said.
The California ruling could “ripple out and embolden other states,” including those like Vermont that already passed legislation and others now contemplating bills, said Wilkinson Barker’s Ray Gifford. “The real headaches will begin as ISPs try to juggle the variation between states." At least five laws or executive orders don’t mention or fail to define broadband information access service (BIAS), “raising questions about whether these laws cover the same services [as] the previous federal regime or each other,” while six other state policies define BIAS “but fail expressly to exempt enterprise offerings, which the FCC did in 2015,” said the former Colorado Public Utilities Commission chairman. “It’s hard to see a meaningful fix short of congressional action.”