Port Partnership Power In Washington; Bill Passes

Last week we reported about the uncertain position that faced Washington ports might find themselves in, should they decide to bring better connectivity to the areas within and around their service areas. We are pleased to learn that the state legislature saw the light and chose to pass the bill without the proposed harmful Senate amendments. It's good news, but the final bill isn't ideal. 

The Problem; The Proposed Solution

Current law allows ports to develop and use fiber optic infrastructure for its own uses both within and beyond their geographic borders; they can only offer wholesale services to other entities within their borders. HB 2664, as introduced, removed the geographic restriction for wholesale services. Communities like Bellingham want to attract ISPs to their cities to compete with incumbents and encourage better prices and services. With the ability to use fiber from the port and possibly integrate it into an expanded network, a city like Bellingham could save time and considerable expense if they wish to invest in Internet infrastructure throughout the community.

Local advocate Jon Humphrey, who has been following this bill and others in his area, noted that the bill had much to do with population density. There had been a change to the original language of bill — the “rural” port requirement, which effectively protected national ISPs from any competition. Humphrey wrote, “This is where the modification of the bill should have ended.”

To The Senate

The bill had no problem passing the House, but when the Senate took it up, they added several amendments that distressed Humphrey and others watching the bill and rooting for it to pass.

We were also concerned about the amendments, including a change that required projects to prioritize unserved and underserved areas. Serving such areas is certainly critical, but this type of language in legislation serves to protect incumbent ISPs from competition rather than to bring high-quality Internet access to areas ignored by those same incumbents. Allowing some level of competition in more densely populated areas helps support projects that reach into less populated unserved and underserved areas.

Humphrey expressed concern over another amendment that, in his opinion, limited partnerships and would create de facto monopolies:

One amendment created a loophole allowing the telecoms to eliminate competition by Washington’s ports. The Amendment says, “A port district under this section may select a telecommunications company to operate all or a portion of the port district’s telecommunications facilities. For the purposes of this section, “telecommunications company” means any for-profit entity owned by investors that sells telecommunications services to end users. Nothing in this subsection is intended to limit or otherwise restrict any other authority provided by law.”

Washington is known for its open access networks and the fact that multiple ISPs provide services to residents and businesses via publicly owned infrastructure. The arrangement allows subscribers to have choice, which helps keep prices reasonable and encourages better customer service. Often Public Utility Districts, such as the Grant County PUD, provide open access infrastructure and multiple ISPs offer services to subscribers. When we spoke with Grant County PUD’s Russ Brethower for episode 279 of the Community Broadband Bits podcast, 24 companies offered services via their fiber optic network.

As Humphrey pointed out, issues with network neutrality need to be considered before the state legislature imposes a restriction limiting partnerships. The amendment the Senate had proposed violated the spirit of Washington’s open access tradition.

House Substitution Prevails

Fortunately, when the amended bill came back to the House, they rejected the changes that the Senate had made to protect big incumbent ISPs. When the House returned the bill to the Senate without the changes, the Senate accepted the bill and sent it on to the Governor.

It was mostly good news, except that the House substitute bill the Senate had reviewed included the provision that port districts adhere to a much higher level of transparency than incumbent ISPs. Last week, we thought the provision had been a Senate amendment, but on closer inspection of the legislative process realized that the provision was already in the bill when the Senate received it. Regardless of when the provision became part of HB 2664, language like this can discourage private sector partners from working with communities that open up their publicly owned infrastructure. When competitors have access to so much information, it can be difficult to compete.

Humphrey describes the result as "a step in the right direction":

I'm happy with it because I live in Whatcom County/Bellingham and the population density clause was keeping our port from helping our citizens get better broadband solutions. I believe that we all need access to more ethical, locally provided, telecom solutions. In Bellingham, most people still are dealing with virtual monopolies provided by overpriced, expensive, anti-net neutral providers.

Read the final bill here.