Federal departments are applying lessons learned from NTIA’s broadband technology opportunities program (BTOP) and the Rural Utilities Service’s broadband initiatives program (BIP) to new infrastructure funding, officials said at an FCBA webinar Thursday. Georgia, Virginia and Minnesota broadband officials said they will be ready for NTIA’s broadband, equity, access and deployment (BEAD) program.
Adam Bender
Adam Bender, Senior Editor, is the state and local telecommunications reporter for Communications Daily, where he also has covered Congress and the Federal Communications Commission. He has won awards for his Warren Communications News reporting from the Society of Professional Journalists, Specialized Information Publishers Association and the Society for Advancing Business Editing and Writing. Bender studied print journalism at American University and is the author of dystopian science-fiction novels. You can follow Bender at WatchAdam.blog and @WatchAdam on Twitter.
A California fight is heating up over proposed broadband subsidies that the California Public Utilities Commission might award next week to carriers including Frontier Communications and Race Communications. Etheric, GeoLinks, LTD Broadband and others in recent weeks opposed proposed California Advanced Services Fund (CASF) resolutions up for vote at the CPUC’s Dec. 16 meeting because they said the projects overlap with places where they won Rural Digital Opportunity Fund (RDOF) support. Commissioners may vote at the meeting on a proposed decision that could prevent LTD from qualifying for RDOF support in California.
Ohio legislators amended a comprehensive privacy bill by unanimous voice vote at a House Government Oversight Committee hearing Wednesday. Rep. Rick Carfagna (R) said the new version of HB-376 is “more nuanced” about how it classifies businesses, differentiating between data controller at the front end and processors in the backend. The amended bill would preempt local privacy rules, give consumers a right to opt out of targeted advertisements and align various definitions more closely with other states’ bills, Carfagna said. Businesses wouldn’t have to respond to requests for pseudonymous data, he said. The lawmaker said he worked on the amendment with industry groups including the State Privacy and Security Coalition and BSA|The Software Alliance. The Ohio Association for Justice (OAJ), a trial lawyers group, and the American Civil Liberties Union Ohio opposed HB-376. Enforcement only by the state attorney general isn’t enough to protect Ohioans, said OAJ Trustee Curtis Fifner: The bill should allow private lawsuits, at least when the AG decides not to prosecute a claim. The measure is full of “exploitable loopholes” allowing businesses to “circumvent” privacy protections, said ACLU Ohio Chief Lobbyist Gary Daniels: it gives consumers a “right to know” but not to act, he said. Ohio bills typically get three hearings in committee before going to the floor; Wednesday’s was the third.
Judges raised many questions about practical effects of the FCC's January changes to over-the-air reception devices (OTARD) rules, at oral argument Tuesday in the U.S. Court of Appeals for the D.C. Circuit. The court heard Children’s Health Defense (CHD) and four individuals’ challenge of FCC amendments that appellants said could lead to large-scale deployment of carrier equipment in residential areas despite alleged local harms (see 2110140031). Since the commission's goal was to reduce deployment barriers, said Judge Patricia Millett, “it seems to me the FCC itself anticipated that this was going to produce substantial proliferation of these antennas.”
ISP associations asked the 2nd U.S. Circuit of Appeals to require their brief by Feb. 23 on New York’s appeal of a lower court rejecting the state’s broadband affordability law, in letters Monday in case 21-1975 from the Satellite Broadcasting and Communications Association, New York State Telecommunications Association, CTIA, USTelecom and NTCA. U.S. District Court in Central Islip, New York, temporarily blocked the state law earlier this year, ruling ISPs would likely succeed on conflict and field preemption arguments (see 2107230044). Last week, in an amicus brief, California, Illinois, 20 other states and the District of Columbia said they “seek to defend New York’s sovereign right to exercise its police powers against Plaintiffs’ unwarranted assertions of federal preemption.” Amici “regularly exercise their sovereign authority to enact and enforce numerous laws applicable to broadband providers and other online businesses,” including laws “aimed at securing their residents’ access to vital goods and services,” they said. “There is nothing about the Internet that necessitates a departure from that normal state of affairs, and certainly nothing that warrants it in the absence of clear direction from Congress.” In other amici filings, the Benton Institute and Public Knowledge said the New York law is “a targeted and state-specific regulatory response to the problem of the digital divide.” Access Now, the National Digital Inclusion Alliance and others said federal “programs, while being helpful and effective, have not fully solved" the "broadband affordability problem.” The Greenlining Institute said states “have long played an essential role in regulating both interstate and intrastate communications, both as an exercise of their inherent sovereign police powers and within a federal statutory framework that leaves room to adapt communications law and policies to local concerns.” The district court's field preemption claim, if affirmed, "would invalidate vital state laws regulating areas of traditional local concern -- including consumer protection, public health, and public safety,” wrote seven internet law professors including Harvard Law School’s Lawrence Lessig and Stanford Law School’s Barbara van Schewick. It would “leave both the FCC and the states without regulatory authority, leaving Americans wholly unprotected from harms by interstate communications providers,” they said.
A landowners' challenge to a Virginia easements law is gaining attention as other states consider similar laws to make it easier for power companies to add broadband lines to land where they have electric facilities. Virginia’s 2020 law allows utilities to proceed without permission or additional compensation to landowners. The U.S. District Court in Charlottesville dismissed constitutional claims against Virginia in Grano v. Rappahannock Electric Cooperative (REC) last month, but the landowners haven’t given up and are considering appeal, said their lawyer Joshua Baker of Waldo and Lyle, in an interview.
Texas will appeal a U.S. district court pausing the state's social media law, a spokesperson for Gov. Greg Abbott (R) said Thursday. Internet associations that challenged the law expected Texas to appeal Wednesday’s preliminary injunction, their officials said in interviews Thursday. Those same groups earlier won preliminary injunction -- also under appeal -- against a similar Florida law, but NetChoice Policy Counsel Chris Marchese told us a “very high risk” remains that more states will try to regulate social media.
Oklahoma’s transition to a connections-based state USF contribution mechanism is “so far, so good,” said Brandy Wreath, the Oklahoma USF (OUSF) administrator, in an interview. Oklahoma Corporation Commission (OCC) members ordered the interim change in August to try to stabilize the OUSF while parties work on writing recommendations for the legislature (see 2108050049). In Tuesday comments at the California Public Utilities Commission, wireless companies and consumer groups panned a staff recommendation to shift to a flat, per-line surcharge.
The “sky’s the limit” on how many more broadband dollars California can get beyond a minimum $100 million the state is to receive under the recently enacted infrastructure law, Sen. Alex Padilla, D-Calif., said at a California Forward webinar Tuesday. The infrastructure law’s $65 billion for broadband includes $42.45 billion for NTIA grants to states under the Broadband Equity, Access and Deployment program (see 2111240021). President Joe Biden signed the law but not checks, said Padilla. To get its “fair share,” California must be “proactive” as NTIA defines programs to make sure projects and applications are ready, he said. California is “ahead of the game” because it already invested much money over many years, he said: The state knows well which areas remain unserved and underserved and about how much it will cost to bring them high speeds. How much money each state gets beyond $100 million is based on a formula in the law, and exact amounts won’t be known until FCC maps come out, possibly in early summer 2022, said NTIA acting Administrator Evelyn Remaley. NTIA plans listening sessions and to seek comments as it develops its notice of funding availability, she said. California is "ready and willing" to work with the federal government, said Assembly Majority Leader Eloise Gomez Reyes.
It’s a “real stretch” to say Ohio's privacy bill would protect consumer privacy, said American Civil Liberties Union Ohio Chief Lobbyist Gary Daniels in an interview. ACLU seeks a private right of action, but HB-376 requires only AG enforcement, which companies would be able to avoid by fixing any raised problems within 30 days, he said. ACLU prefers opt-in to the proposed opt-out approach, and the bill would give consumers only a right to request certain information, he said. Lt. Gov. Jon Husted’s (R) support for the bill doesn’t guarantee it passes the Republican-majority legislature because some legislators in his own party have clashed with him and Gov. Mike DeWine (R) over government authority responding to COVID-19, said Daniels. At a September hearing, HB-376 sponsors said they think the bill strikes the right balance between protecting consumers and being fair with businesses (see 2109280042).