May 6, 2019 by Tom Cohen

Has the Time Finally Come for Federal Broadband Infrastructure Investment?


Three recurring questions have filled my inbox during the past couple weeks so I thought I would share my perspective with a wider audience.

Will there be a new federal “infrastructure” program that includes broadband?

This past week the President and the Democratic Congressional leadership seemed to agree on a $2 trillion infrastructure package that would include funding for broadband. At the same time, they left out the details of the program, including how to pay for it, and they will meet again in several weeks to discuss this further. Because there have been so many false starts over the past several years to creating a federal infrastructure program, there is general skepticism that this time is the “charm.” And, no doubt, it will not be easy finding money to pay for the program.

Lack of quick motion on a major infrastructure program does not mean this Congress will not approve additional broadband funding. Just last year, Congress appropriated $600 million for the new Re-Connect pilot program, and there is support in both parties to close the digital divide. So, stay tuned for developments over the rest of the year as Congress drafts its annual appropriations legislation… and if Congress somehow beats the long odds and enacts a full-blown infrastructure package, that will be a bonus.

What is the timetable for the FCC to institute the new Rural Digital Opportunities Fund (RuDOF)?

An FCC spokesperson said that Chairman Pai would like to start work on the RuDOF later this year and hold the auction next year. I expect the FCC will launch the proceeding to adopt rules for the new program in the third quarter. These proposed rules are likely to be based on the Connect America Fund Phase II auction rules with refinements on various provisions. The FCC could complete this proceeding in the first quarter of 2020, and then issue a public notice for the auction procedures, which will be based on the Phase II procedures.

The FCC also will need to determine the eligible (unserved) areas for the program, which should be located largely in price cap carrier territories. These unserved areas are expected to be based on the most recent version of the broadband map (at 25/3 Mbps), but the open question is whether the FCC will use a challenge process to ensure these designations are accurate. After the concerns raised with the designation of unserved areas for the new Mobility Fund, the FCC may have no choice but to permit a challenge process, even if it involves lots of extra work and time.

If all goes well, applications to participate in the auction would be due in the third quarter of next year and would be cleared by the FCC in the fourth quarter, so the auction could begin before the end of 2020. That said, this schedule appears optimistic, and the auction may slide into 2021.

Will Congress enact new federal privacy legislation that creates reasonable and uniform national requirements?

While Members of Congress from both parties would like to enact a federal privacy law, there is no consensus about what the law should include. Consumer interests support a federal law that mirrors the California Consumer Privacy Act and that permits states to enact even tougher laws. Business interests can live with some elements of the California law but want to preempt additional state requirements. At the moment, a group of Senators is attempting to bridge this wide gap. And, even if they develop a consensus bill, it will be difficult for that bill to clear the Senate, and the Democratic House will want a bill that favors consumer interests. So, the odds are against enactment of a new federal privacy law. That means, the Federal Trade Commission will continue to establish federal privacy policy, and states will have the freedom to adopt their own policies.  

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