Legal Barriers to Expanding High Speed Reliable Internet

The pandemic accelerated the momentum for getting every American access to affordable, reliable broadband. It also elevated the role that states and localities should play in bridging the digital divide—the gap between those with access to high-speed internet and those without it—including by building partnerships with internet service providers (ISPs) to get communities online. 

But telecommunications law is complex and can occasionally present legal and regulatory challenges to broadband expansion projects. As communities and ISPs work to form partnerships, they need a legal strategy and action plan to address these complexities early in the process.

Attorney James Baller is a partner at Keller and Heckman LLP, representing clients across the country in a range of communications legal matters, and president of the Coalition for Local Internet Choice, which works to prevent or remove barriers to local broadband initiatives and public-private partnerships. He is also the founder and former president of the U.S. Broadband Coalition, which helped provide the framework used in the Federal Communications Commission’s 2010 National Broadband Plan.

This interview has been edited for clarity and length.

Q: As Pew has reported, states are using a variety of approaches to expand broadband to their communities, especially underserved ones.

A: You’re absolutely right. I’m delighted to see so many states stepping forward aggressively, and in so many different ways, to meet today’s broadband challenge. Recognition that states have a critical role to play in accelerating broadband deployment, adoption, and use has really taken hold, especially in the last year. Many states have formed broadband offices to gather accurate information, develop statewide strategies, provide guidance to localities, and, in many cases, offer substantial funding as well. 

Q: But deploying programs to expand broadband access can be complicated in some states.

A: Yes, unfortunately, several states still have legal barriers that stand in the way of local broadband initiatives and public-private partnerships, and some states prevent local governments from taking full advantage of available federal or state funds. That has to change.      

Q: Speaking of federal and state funds: How can federal and state governments best collaborate to bring high-speed connectivity to everyone?

A: During the last decade, the federal government and the states spent billions of dollars on programs to spur broadband deployment, often with hugely disappointing results. Things will surely get better as a result of the lessons from these experiences and the substantial influx of federal, state, local, and private funding for broadband that we’ll see during the next few years, especially if the infrastructure bill becomes law. The National Telecommunications and Information Administration, or NTIA, tracks more than 80 federal broadband funding programs across 14 federal agencies. These programs interact with each other, and with the rapidly proliferating state broadband funding programs, in many different ways. So it’s important for leaders at every level of government to understand how funding sources overlap, and where legal and regulatory guidance or rules may come into conflict with one another.

Q: You mentioned the infrastructure bill. What’s in it for broadband?

A: If the House of Representatives passes the Senate version without substantial change, some $42.45 billion in federal funds would be distributed by the states. The bill also includes deployment funds to be distributed through the Department of Agriculture and provides an additional $2 billion to a tribal broadband program that’s currently administered by NTIA.  

Q: Sounds promising for supporters of broadband expansion.

A: Yes, but we’ll still face many significant challenges. For example, while most federal and state programs have focused on making broadband universally available and affordable, most of these programs don’t offer federal or state support to any community that already meets the FCC’s definition of “broadband”—which is 25 megabits per second, or Mbps, for downloads, and 3 Mbps for uploads. That’s much slower than how most people understand the term “broadband” today—not to mention what they need for learning and working remotely. Yet areas that have that puny level of connectivity are typically shut out from federal or state support.

Q: Let’s step back and talk about why communities even need high-speed broadband.

A: Advanced communications networks are similar to electric power systems: They’re essential platforms, drivers, and enablers of progress in just about everything that matters to communities. This includes economic development, education, workforce development, public safety, health care, energy management, environmental protection, transportation, government services, and much more. If America is going to remain a great nation in the decades ahead, we must not limit ourselves to simply ensuring that all Americans eventually have affordable access to high-capacity broadband capabilities in order to participate fully in modern life; we must also ensure that we get there as rapidly as possible. To do that, we must take advantage of every feasible option, including community initiatives and public-private broadband partnerships. 

Q: Your expertise is on the legal side. So, can you explain how federal, state, and local communications laws interact?

A: On the regulatory side, interstate communications are generally subject to federal law, and intrastate communications are generally subject to state law. Cable TV service is governed by state and/or local law, which are framed by federal standards. But internet access service is largely unregulated at all levels of government, except for various detailed reporting and transparency requirements.

Q: Unregulated? Really?

A: Well, Congress has not undertaken a comprehensive review of our country’s communications laws since the Telecommunications Act of 1996. Of course, communications services and the communications industry have changed in many significant ways over the last 25 years, which means that our regulatory infrastructure has not kept up. As a result, our regulatory regime is now marred by many head-scratching inconsistencies and anomalies. Another overhaul is long overdue.

Q: It seems as if, on the regulatory side as well as the funding side, local leaders face complicated and challenging requirements and processes. What would you advise community leaders to do?

A: First and foremost, I’d advise them not to panic. Hundreds of communities have found ways to address these matters successfully. The key is to identify and deal with the requirements and opportunities early on. Mistakes that can be very costly and disruptive are often avoidable. 

Q: As local leaders look to expand broadband access in their communities, they often evaluate multiple options, including not only community broadband initiatives but what we often call P3s—public-private partnerships. What key legal issues should local leaders be aware of?

A: Important legal issues exist at every stage of P3 projects. First, to provide or facilitate the provision of communications activities, local governments must have authority to do so under state and local law.  So, local leaders need to identify and plan around any limits on their authority, including the procedural steps they’re required to take. In the project planning stage, the public entity must map out how it or its partners will deal with various funding, structural, governance, and regulatory issues, including rights-of-way, pole attachments, easements, and many other legal issues. If the local government wants to find potential partners through a formal or informal bidding process, such as a request for proposals or quotes, it must comply with applicable procurement requirements. In the negotiation stage, local leaders will have to carefully work through the allocation of responsibilities, risks, and rewards with the partner, or partners, in the project. Then, during the implementation stage, they’ll have to satisfy all of the legal obligations required by their agreements or applicable law. 

Q: So how do P3s make sure they’re meeting all the requirements?

A: Figuring this out won’t always be easy. To the contrary, federal and state requirements are often counterintuitive; they’re creatures of history rather than of logic. The best way to ensure compliance down the road is to make experts a part of the project team from the outset. Understanding the regulatory landscape early on also gives the parties to P3s an opportunity to organize their projects in such a way that they maximize regulatory benefits. 

Q: You played a major role in paving the way for the National Broadband Plan in 2010, and we’re at a similarly pivotal moment in broadband policy today. What’s different this time around?

A: There are many differences, but I think that the three most important ones are: that many more Americans now understand the critical importance of affordable access to advanced communications, so we’re much closer to a national consensus on the need for robust broadband everywhere; that billions of federal and state dollars, as well as billions more in private capital, are becoming available to help accelerate broadband deployment, adoption, and use; and that there’s a substantial risk that these funds will not be invested in optimal ways without a widely accepted and trusted national strategy to guide the process. 

Last time around, Congress put the development of the National Broadband Plan in the FCC’s [Federal Communications Commission’s] hands, rather than the approach I had proposed: an independent blue-ribbon commission to study the key issues and make recommendations to the president and Congress. I think a commission like that would still be a good idea now.

And I was also disappointed in the relatively modest 10-year goals set forth in 2010 plan. Had we set higher goals, we might now be much further along. If the country is going to remain a leader in the increasingly competitive global economy, we need to set and deliver on truly full-bodied goals. I believe we have a real opportunity to do that this time around.

Editor's note: This article was updated on Oct. 15, 2021 for clarity.