When he spoke at the “Free Speech America” Gala in October, did FCC Commissioner Mike O’Rielly think he would still be explaining himself almost two months later? After trying and failing to justify his false claim that munis violate the First Amendment, he’s once again on the defensive. He's getting no help from the big national ISPs he's trying to support.

“Flirting With A Perverse Form of Socialism"

In October, O’Rielly’s accused municipal networks, including Chattanooga’s EPB Fiber Optics, of violating the First Amendment by limiting subscribers free speech. Journalists and organizations who know better were quick to correct him. In a December 13, 2018, blog post, he lashed out at his critics and tried to defend or explain his earlier comments, but once again missed the mark.

In his newest commentary, O’Rielly dramatically describes local decisions to invest in broadband infrastructure as “flirting with a perverse form of socialism.” He goes on to state that publicly owned networks deter private entities from entering the market. He’s correct if we only consider the large, corporate ISPs that refuse to compete with anyone on order to preserve the characteristics monopolies created through concentration of power: shoddy customer service, unchecked rates, and lackluster Internet access.

If we look at private ISPs more interested in serving the local community than in boosting share prices, however, we see some healthy competition. As in the case of Grant County, Washington, where more than a dozen ISPs offer services via the Grant County PUD open access network, if a private provider doesn't perform to subscriber standards, there are others to try.

When considering Iowa, what comes to mind? Open fields? Livestock? High-quality Internet access? According to the FCC, if you live in Iowa, your broadband problems are over. Of course, as ILSR Research Associate Katie Kienbaum points out in her recent piece in the Des Moines Register, the reality in the Hawkeye State is quite different than the FCC’s flawed stats report. The reason is the FCC’s infatuation with satellite Internet access — a view that has some real consequences for Iowa and its people. Read the piece in its entirety here or at the Des Moines Register:

FCC says satellite connectivity is good enough for rural Iowans. It’s not.

Everyone in Iowa has access to broadband, according to the federal government. In fact, two-thirds of Iowans can supposedly subscribe to at least three different broadband providers.

Surprised?

You should be. The hundreds of thousands of rural Iowans who struggle to get good connectivity are.

The sizable disconnect between federal statistics and reality is a result of the Federal Communications Commission (FCC) classifying satellite Internet access as high-speed broadband. Since every census block in Iowa has access to satellite connectivity, everyone is officially considered served.

However, by accepting satellite Internet access as “good enough,” the federal government is dooming rural Iowans to second-rate connectivity, effectively shutting them out of the modern economy.

Anyone stuck with Internet access from a satellite provider will tell you that it’s not true broadband. Speeds are much slower than cable or fiber, and high latency, or signal transmission time, makes it practically impossible to use for video or phone calls. On rainy days, you might not get service at all. This poor quality isn’t even reflected in the price. Satellite providers often charge more than other types of Internet access providers, while forcing subscribers to decipher complicated data plans and sign on to long contracts.

On October 24th, FCC Commissioner Mike O’Rielly spoke before the Media Institute at their “Free Speech America” Gala. In a speech for the telecom-backed group, O’Rielly delivered exactly what many of the big hitters in the audience would want to hear. He falsely accused, with nothing to back up his claims, municipal networks of posing  an “ominous threat to the First Amendment.”

Whaaaa?

Karl Bode reported on the event, noting that O’Rielly goes on to falsely claim that local governments have or will attempt to limit free speech through municipal networks. Bode immediately addressed the baseless statements and reached out to Christopher, who confirmed that, ”There is no history of municipal networks censoring anyone's speech.” Jon Brodkin at Ars Technica also wrote a well-reasoned article reminding readers that O'Rielly previously called rules to protect against censorshop by ISPs "baseless fearmongering." Huh... that sounds right. 

Apparently, the impressionable O'Rielly had been reading up before his speech and had just put down a copy of a document from the Free State Foundation, an organization funded in part by deep pocketed ISPs. The document implied that community networks would be more likely to interfere with free speech. Such is the disinformation game.

The American Civil Liberties Union has addressed this concern in the past because they oppose any efforts to censor speech, whether by government or corporations. In their paper on municipal broadband networks, they wrote:

And indeed, First Amendment principles prevent the government from targeting certain ideas or viewpoints for censorship or reduced access. Governments risk violating the Constitution if they create blacklists of disfavored websites, only permit access to “approved” websites, engage in content filtering, or ban anonymous online browsing or writing.

For all their attempts to tout their accomplishments, the current FCC under Chairman Ajit Pai is failing miserably at the their promise to shrink the digital divide in America. In a recent commentary in The Hill, policy and program manager for Next Century Cities Cat Blake explains how, rather than reducing the gap between Internet haves and have-nots, policy changes under the new administration is making the problem worse. Cat offers a few specific examples of policies and actions taken by the current FCC that have not only aggravated the problem of digital inclusion, but masked the realities of its severity.

Lifeline Under Attack

The federal Lifeline Program offers subsidies for phone and Internet access connections for low-income folks. Blake writes that this tool, one of the most effective in allowing people to obtain access to the Internet, is one of Pai’s targets — a big target:

Pai’s proposed changes would cut off approximately 70 percent of the 10 million program participants — including approximately 44,000 individuals in DC alone — widening the digital divide among the country’s most vulnerable populations. Lifeline is the only federal program that provides subsidies to disadvantaged Americans for 21st century communications services and it is relied upon by victims of domestic violence, military veterans, homeless youth and others to stay connected.

Broadband Deployment

Pai has continuously claimed that the current FCC has “taken significant steps to expand broadband deployment in previously unserved parts of our country.” While the 2018 Broadband Deployment Report offered a six percent increase in the number of people with access to broadband — increasing to 95 percent — Blake notes that the increase wasn’t purely due to deployment:

On September 26th, Republican FCC Commissioners adopted an Order that usurps local control and, in keeping with this administration’s prior policy decisions, strengthens the power of the largest companies, obtaining nothing in return.

Bad Reasoning

At issue are local governments’ ability to determine the amount of fees to charge mobile carriers that want to place 5G equipment in rights-of-way. In addition to establishing fees, the Order sets strict timelines in which cities and towns must respond to carrier applications. The FCC decision eliminates local communities’ ability to negotiate in order to protect their own rights-of-way and the poles, traffic lights, and other potential structures in them.

To back up their decision to adopt the new policy, the Republican controlled FCC relied on the incorrect claims that application and attachment fees in larger communities are so excessive that they create a burden which prevents carriers from investing in rural communities. Former FCC Chief of Staff and one of the architects of the 2010 National Broadband Plan Blair Levin echoed the thoughts of policy analysts and thought leaders in telecommunications:

"[E]ven if one accepts the FCC claim about the $2.5 billion—which is highly questionable—that amount is about one percent of what the FCC and industry claim is the necessary new investment needed for next-generation network deployments and, therefore, is not likely to have a significant impact," he wrote.

The FCC does not require mobile carriers to commit to expanded coverage in smaller communities within the Order. Next Century Cities describes the situation in a press release:

These low fees would create a de facto public subsidization of industry investment. … The FCC is just giving private wireless companies all of the benefits of a utility without any traditional public interest obligations.

FCC Commissioner Jessica Rosenworcel, who has continued to oppose the Order, described the giveaway:

According to the Federal Communications Commission (FCC), at least 35 percent of tribal residents do not have access to fixed broadband. In comparison, only 7.7 percent of all U.S. residents lack access to fixed broadband, defined as minimum speeds of 25 Megabits per second (Mbps) download and 3 Mbps upload.

However, a recent report from the Government Accountability Office (GAO) concludes that this disparity is probably even starker.

The report, prepared at the request of the U.S. Senate Committee on Indian Affairs, finds that the FCC’s broadband data is inadequate and inaccurate. As a result, the data overstate sbroadband availability nationwide, particularly in tribal areas. Additionally, the report notes that the FCC fails to engage tribes in the data collection process.

Bad data isn’t just a bureaucratic recordkeeping problem. Tribal communities can miss out on federal funding to improve connectivity in unserved and underserved areas if the FCC data shows that they already have access to broadband.

Reporting Methodology Overstates Access

For the most part, the FCC gets its information on fixed broadband availability through Form 477. Internet service providers (ISPs) submit the form twice a year, listing the census blocks they serve and the highest speeds they advertise.

This data collection methodology inherently exaggerates Internet access. Since ISPs report coverage by census block, an entire block is considered served even if the provider offers, or could offer, access to only one home.

Many tribal lands are located in rural areas, the report notes, where large census blocks result in vast overstatements of broadband availability. Census blocks can also contain both tribal and non-tribal lands, further obscuring the extent to which tribal communities lack connectivity.

Shortly after Republican FCC Commissioners repealed federal network neutrality protections late in 2017, state lawmakers began introducing legislation to protect their constituents. California’s AB 1999, introduced as one possible antidote to the FCC failure in judgment, passed the General Assembly on August 29th and is on its way to Governor Jerry Brown.

Read the final version of the bill and the Legislative Counsel Digest here.

Let the People Serve the People

As local communities have investigated ways to protect themselves from throttling, paid prioritization, and other activities no longer banned, they’ve looked at investing in publicly owned infrastructure. Rural communities where national Internet service providers are less motivated to deploy have always struggled to attract investment from the same large companies known to violate network neutrality tenets. Assembly Member Ed Chau’s AB 1999 addresses rural communities’ need for better connectivity, solutions that can preserve network neutrality, and challenges in funding broadband infrastructure.

California’s community service districts (CSDs) are independent local governments created by folks in unincorporated areas. CDSs provide services that would otherwise be provided by a municipality. Residents usually join together to form a CSD and do so to establish services such as water and wastewater management, garbage collection, fire protection, or similar services. A CSD also has the ability to create an enhanced infrastructure financing district (EIFD) in order to finance the development of a broadband network.

The EIFD statute granting the authority allows communities, including CSDs, to join together regional projects for a range of financing purposes. Tax Increment Financing (TIF) and various bonding mechanisms are a few examples.