Law360 (February 1, 2021, 8:07 PM EST) — The Biden administration appears poised to shift away from the Trump-era focus on deploying broadband infrastructure in rural areas, choosing instead to examine how to make internet service more affordable for lower income people regardless of where they live.
While the Republican-led Federal Communications Commission crafted rules largely aimed at encouraging broadband companies to build out in sparsely populated areas, experts suggest more liberal policymakers will ensure subsidies go to consumers who might struggle to pay their bills.
“The emphasis … the last administration [attempted] to sell to us — that all we need to do is build, build, build infrastructure and the rest will take care of itself — was very shortsighted,” said former Democratic FCC Commissioner Mignon Clyburn. “I do not see this administration making that error.”
Democratic FCC Commissioner Geoffrey Starks charted this course in a Jan. 26 speech, noting that a focus on shoring up spotty or nonexistent broadband infrastructure in far-flung corners of the country won’t necessarily decrease the so-called digital divide.
“In recent years, the FCC has focused almost exclusively on rural deployment … But Census Bureau surveys show that three times as many households in urban areas remain unconnected as in rural areas,” he said. “In 2021, Black Americans and other people of color are still, by a wide margin, significantly less likely to have a home broadband connection than their counterparts. This cannot stand.”
Starks suggested that the FCC will get a better return on its broadband dollars when it invests in providers and services that average and low-income Americans can take advantage of. He also suggested this could lead to a greater emphasis on urban areas, where people either don’t have adequate internet service or can’t afford to purchase it.
“We need to make sure that the FCC’s investments in infrastructure lead to service that American families can actually afford,” he said. “If we use our finite funds to build out broadband infrastructure without any regard given to whether people can afford the service once it arrives, we have not done the job assigned us by Congress.”
The Biden FCC has several fronts on which it could advance these consumer-focused broadband priorities. It must quickly hammer out rules for distributing $3.2 billion in emergency funds allocated by Congress, which will allow participating providers to knock up to $50 per month off the going rate for internet service, and up to $75 a month for customers on tribal lands, for households affected by the coronavirus pandemic.
The FCC is currently mulling eligibility criteria, which could include allowing people who already receive Federal Pell Grant student aid, free or reduced school lunches, or unemployment benefits to easily qualify for the enhanced broadband support.
Acting FCC Chairwoman Jessica Rosenworcel is also seeking to expand the educational-focused E-Rate subsidy program to cover at-home learning as well as on-campus connections. On Monday, the agency solicited public comment on a plan to do just that.
The agency is further tasked with distributing a second tranche of broadband funding through the Rural Digital Opportunity Fund. Launched under former FCC Chairman Ajit Pai, the program stands to dole out $20.4 billion for rural broadband projects over a decade.
Former Republican FCC Commissioner Robert McDowell said the rural program’s existence could animate a shift away from expressly prioritizing rural areas in subsidy distribution schemes, as it already devotes resources to rural gaps. The COVID-19 pandemic has spotlighted the number of families across the country who can’t get online, and he said this could signal a more general focus on universal internet access.
“You’re seeing, especially because of COVID, a different calculus here,” said McDowell, now a Cooley LLP partner. “There are people in need, regardless of whether they live in urban, suburban or rural America. That’s going to cut across, I hope, party lines.”
According to Starks, one way to link affordability to broadband buildout is to require providers that accept FCC infrastructure funds to offer an “affordable option” for consumers. To that end, Rep. Jim Clyburn, D-S.C., and Sen. Amy Klobuchar, D-Minn., introduced the Accessible, Affordable Internet for All Act this summer, which would allocate $100 billion to broadband expansion while requiring providers to build in low-cost plans and report pricing data to the FCC.
Former Democratic FCC adviser Gigi Sohn agreed that 2021 could bring a sea change in the way the FCC approaches subsidy distribution and consumer broadband access. She suggested that the Trump-era FCC favored rural regions that politically aligned with Trump while seeking to exclude rural areas in blue states from funding.
For example, the FCC’s Republican majority last year sought to block New York state from the Rural Digital Opportunity Fund because it previously committed to deploying broadband across the whole state using a separate federal cash infusion.
“It was about the most partisan way you can try to close the digital divide possible,” Sohn said. “I don’t think it’s any surprise the Trump FCC never uttered the word ‘affordability.'”
Perkins Coie LLP partner Marc Martin told Law30 that the Biden administration will have to make up for ground lost during the Trump administration due to politically tinted decision-making.
“The Trump administration’s legacy on digital equity will not be looked upon as a success by history,” Martin said. “It was obvious that the Trump administration tried to shift the long-standing bipartisan effort to bridge the digital divide to subsidizing the geographic regions that voted for Trump.”
The effects of the pandemic should serve as a wake-up call for Biden administration officials to pay closer attention to the experiences of low-income, disadvantaged and minority consumers instead of continuing to use geographic disparity as a key decision factor, Martin said.
“If anything, the digital divide grew wider under the Trump administration, which was evident during the pandemic among students, frontline workers and the most vulnerable,” Martin said.
However, Cooley’s McDowell pushed back on the “nakedly partisan” characterizations of the Trump era strategy for deploying broadband. Both Democrats and Republicans are invested in getting more Americans online, he said, although the way they seek to do so remains the sticking point.
Under Pai’s leadership, the agency focused on pushing out broadband infrastructure in rural areas and making additional wireless spectrum available to commercial carriers, both of which remain legitimate solutions to the problem, he said.
It’s inaccurate “to say Republicans were helping rural America at the expense of urban America,” he said. “All along, Republicans and Democrats have been working together on both rural and urban issues, as well as the underserved — the people who can’t afford some of these services.”