Updates on Net Neutrality and Rural Broadband

Submitted on February 23, 2018

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Round-Up for the Week of February 19-23, 2018

Today we take a moment to clarify some of the top telecommunications policy news from the past week. First, the Federal Communications Commission published in the Federal Register its repeal of the 2015 network neutrality rules. While this opens the door for lawsuits to be filed, it does not give us an indication as to when the repeal will fully be in effect. Also this week, the Trump Administration reiterated its support for rural broadband, but still isn't backing it up with any funding earmarked for the expansion of high-speed internet access. More on both stories below.

Net Neutrality Rules “Published”

On February 22, the FCC published in the Federal Register its December 2017 order that repeals its 2015 net neutrality rules. The Federal Register, for you scoring at home, is the official daily newspaper of the U.S. federal government. It is there that you can find all the proposed and final administrative regulations of federal agencies. What does publication of the FCC’s order mean?

Certain minor portions of the repeal order will take effect on April 23. However, according to Public Knowledge senior counsel John Bergmayer, “What goes into effect in 60 days is some technical stuff that does not change anything meaningful.” Importantly, despite what you might have read, we still do not know for sure when the heart of the new net neutrality rules will go into effect. Why? Because the FCC order — and, specifically, its new transparency requirements — is contingent on approval of the US Office of Management and Budget (OMB). After OMB approval (a process that will likely take months), the FCC will publish another document in the Federal Register announcing the effective date(s) of the rest of its order.
Lawsuits to overturn the repeal can get started this month. There is a 10 60-day* window for filing lawsuits.
Finally, Members of Congress now have 60 legislative working days to introduce a Congressional Review Act resolution that would reverse the repeal (a “repeal of the repeal,” if you will). Democratic lawmakers intend to do so. In the Senate, Sen Ed Markey (D-MA) is leading the charge. Fifty Senators have indicated they will support Markey’s CRA resolution. Because the resolution is not subject to filibuster, the support of just one more Senator is needed for passage in the Senate. But a CRA resolution could face a tougher task in the House, where Republicans have a 238-193 majority. Rep Mike Doyle (D-PA) is leading the charge there and over 140 Representatives have publicly-indicated their support. If the resolution passes both chambers of Congress, President Donald Trump must sign it to make the repeal of the repeal official.

More of the Same from the White House on Broadband Infrastructure

Last week, we wrote about the broadband components of President Trump’s infrastructure plan [See: President Trump's Infrastructure Plan Unveiled, And It's Light on Broadband]:

[W]here does broadband deployment fit into President Trump’s infrastructure plan? It gets squeezed in. Sorta. The proposal does not contain any funding specifically earmarked for improving high-speed internet access. Instead, the plan sets aside a pool of funding for numerous types of infrastructure projects, and broadband is one of the eligible categories.

Perhaps in response to my criticism ;), the White House on Tuesday issued a fact sheet that specifically addresses rural broadband access. “Rural broadband was the only infrastructure type to receive its own section in today’s fact sheet – perhaps because a previous fact sheet emphasized other infrastructure types over broadband,” Joan Engebretson noted. While the fact sheet emphasizes President Trump’s support of broadband, it lacks hard numbers for funding broadband investment. The most relevant information is the notion that, under the Rural Infrastructure Program, governors can spend 100 percent of the Federal funds they receive on broadband.

The Rural Infrastructure Program, part of the larger infrastructure proposal, enables the $40 billion that state governors would receive for rural infrastructure to be used to address “unique infrastructure challenges, rebuilding and modernizing bridges, roads, water and wastewater assets, water resources, waterways, power generation assets, and broadband.” So, if a state governor decided to spend all her state’s allotment on broadband, which the White House this week said is a possibility, it would mean it would come at the expense of all other infrastructure projects.

The following day, in the President’s Economic Report to the Congress, President Trump suggested the broadband ball had been dropped on prior watches:

President Clinton promised to connect 'every classroom, every library, and every hospital in America,' to the Internet by 2000. Decades later, 39% of rural Americans still lack high-speed broadband. And a quarter of America’s K-12 students lack adequate Internet connectivity at school. It is intolerable to continue pretending that this is the best America can offer to our students. My Administration is working to expand accessibility and expedite the process of bringing the Internet to hard-to-reach areas.

To reiterate, the Trump Administration still did not provide any funding specifically earmarked for improving high-speed internet access.

In the White House’s defense, John Eggerton noted that perhaps one reason the Administration is not ready to earmark money for build outs of "conventional infrastructure assets" is the rise of 5G and the ability to boost it by "shaping investment choices.” “[I]t is important to proceed with an understanding of the availability of next-generation and mobile broadband technologies, because these may prove less costly and more desirable to consumers in the long run," reads a report from President Trump's Council of Economic Advisors, which was released alongside the President's Economic Report. The council said that keys to that 5G rollout are standards and the regulatory environment. "Establishing a flexible and adaptive regulatory structure will be needed to support future 5G deployment, with coordination across Federal, State, and local government levels," the council said, pointing to the FCC's April 2017 Notice of Proposed Rulemaking on removing barriers to broadband infrastructure.

Conclusion

Net neutrality and rural broadband expansion got some headlines this week. In reality, the net neutrality update was just a formality along a very long road to a final decision. And, although the White House gave some air to broadband, there were no new dollars to make universal rural broadband a reality. To stay up to date on real news around net neutrality and broadband expansion, be sure to follow along daily in with our Headlines daily newsletter.

* An earlier version of this article reported a 10-day window for filing lawsuits. In fact, parties have 60 days. The narrower, 10-day period concerns participation in a judicial lottery procedure that will determine which court will review the FCC's order given that petitions for review are being filed in multiple federal circuit courts. We regret the error.

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By Robbie McBeath.