Despite a memo issued by the NTIA last summer that sought to discourage states from passing affordable broadband legislation similar to New York State’s Affordable Broadband Act, two dozen state lawmakers in Maryland have signed on to the Broadband Opportunity and Fairness Act, state legislation that seeks to address the single biggest barrier to Internet access anywhere: affordability.

HB-382, if passed, would require Internet Service Providers (ISPs) operating in Maryland to offer low-cost Internet service plans to eligible low-income households.

Introduced by Delegate Kris Fair (D-3A, Frederick Co.), the bill now has 25 co-sponsors and is slated for a Feb. 12 legislative hearing before the House Economic Matters Committee. Companion legislation has yet to be filed in the Senate, though Delegate Fair’s office says they are in discussions with state Senators about advancing a bill through that chamber as well.

Stepping Up and 'Doing Something'

Legal analysts are questioning the recent assertion by the head of the National Telecommunications and Information Administration (NTIA).

NTIA administrator Arielle Roth said last week that the agency she oversees will withhold federal broadband deployment funds from states that have laws enforcing net neutrality or that have enacted affordable broadband legislation similar to New York’s Affordable Broadband Act.

As the assistant secretary overseeing the $42.5 billion Broadband Equity, Access, and Deployment (BEAD) program, Roth’s legal reasoning is striking.

All the more so given that the New York Affordable Broadband Act that requires Internet service providers in the Empire State to offer a low-cost broadband service plan to income-eligible households has been upheld as Constitutional – a case in which the Supreme Court twice declined to intervene and overturn.

Yet, last week in speaking before the conservative Hudson Institute, Roth offered remarks that have legal observers scratching their heads in bewilderment. During her speech, Roth said:

“Consistent with the law, which explicitly prohibits regulating the rates charged for broadband service, NTIA is making clear that states cannot impose rate regulation on the BEAD program. To protect the BEAD investment, we are clarifying that BEAD providers must be protected throughout their service area in a state, while the provider is still within its BEAD period of performance. Specifically, any state receiving BEAD funds must exempt BEAD providers throughout their state footprint from broadband-specific economic regulations, such as price regulation and net neutrality.”

The stakes are high for broadband affordability advocates across the nation. 

The mystery of who and what killed the California Affordable Home Internet Act is coming into view.

As a California lawmaker hinted when the bill was abruptly withdrawn in June, the evidence seems to be pointing to the new leadership now directing the National Telecommunications and Information Administration (NTIA) – the agency administering the $42.5 billion federal BEAD program to expand Internet access.

In a recently released FAQ published by the NTIA this week, a corroborating clue has emerged.

And what may be the smoking gun is a bullet buried on page 48, under section 3.29, after the question: "May an Eligible Entity (states) require a specific rate for the low-cost service option (LCSO) when required by state law?”

NTIA's answer:

“No. The IIJA prohibits NTIA or the Assistant Secretary from engaging in rate regulation. Because the Assistant Secretary must approve the LCSO in the Final Proposal, the rate contained may not be the result of rate regulation. The RPN (Restructuring Policy Notice) addressed this fundamental flaw in the BEAD NOFO. The RPN eliminated BEAD NOFO requirements dictating price and other terms for the required low-cost service option.”

“Per the RPN, states may not apply state laws to reimpose LCSO requirements removed by the RPN. More specifically, the RPN ‘prohibits Eligible Entities from explicitly or implicitly setting the LCSO rate a subgrantee must offer’ (BEAD Restructuring Policy Notice, p.7). Violation would result in rejection of the Final (BEAD) Proposal (emphasis added).”

Last week, a California Assemblymember who had sponsored legislation for a broadband affordability law abruptly withdrew the legislation. 

But what really killed the broadband affordability bill in California? Was it opposition to the proposed legislation from within the state or pressure from the Trump administration?

The Bill Was Advancing Until…

Modeled on New York’s Affordable Broadband Act (ABA), the California Affordable Home Internet Act was first introduced in January. It aimed to require Internet service providers that operate in the Golden State to offer a $15 per month broadband service plan for income-eligible households.

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The proposed legislation was introduced as AB 353 by Assemblymember Tasha Boerner and was initially supported by the California Alliance for Digital Equity (CADE).

Over the intervening months, CADE and proponents of the bill offered resources and recommendations on how the bill could be made more effective than the ABA, hoping to avoid the pitfalls that advocates were seeing with the rollout and implementation of New York’s law.

On June 4, the California bill advanced through the state Assembly and moved on to the state senate by a 52-17 margin.

California lawmakers’ efforts to pass a new law mandating affordable broadband access is at risk of being destroyed by industry lobbying. California insiders say the changes are so dramatic they may wind up making broadband affordability in the state worse – undermining years of digital equity activism and discarding a rare opportunity to bridge the digital divide.

The California Affordable Home Internet Act (AB 353), introduced by Assemblymember Tasha Boerner last January, would require that broadband providers in the state provide broadband at no more than $15 per month for low-income households participating in a qualified public assistance program.

The original legislation mandated that state residents should be able to receive $15 for all ISPs for broadband at speeds of 100 megabit per second (Mbps) downstream, 20 Mbps upstream. The proposal mirrored similar efforts by New York State which opened the door to other state efforts after the Supreme Court recently refused to hear a telecom industry challenge.

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“I want to get something fair and reasonable that helps those who need it most,” Boerner said in a press release. “AB 353 will fill the gap and ensure our children can turn in their homework, families can get access to telehealth, and apply for jobs online.”

On June 4 a vote moved the legislation through the state Assembly and on to the state senate by a 52-17 margin.

Since it first broke ground in 2014, Longmont, Colorado’s city-owned NextLight fiber network has won numerous awards and inspired countless communities nationwide. But the network, which recently expanded access to more than 28,000 area residents, is also trailblazing in another area: ensuring that fiber is affordable to low income, marginalized populations.

NextLight unveiled its locally-funded Internet Assistance Program (IAP) last year. The program provides low-income residents with a $25 discount off of NextLight’s already affordable fiber pricing. As a result, locals can receive symmetrical 100 megabit per second (Mbps) service for as little as $14.95 a month, and symmetrical 1 gigabit per second (Gbps) fiber for $45.

To apply, households must qualify for any of a number of existing federal programs, including the FCC’s Lifeline, Head Start, Medicaid-MSP or SLMP, Veterans or survivor’s pension, Section 8, WIC, food stamps, Federal Pell Grants, Supplemental Security Income (SSI), SVVSD Education Benefit, Temporary Assistance for Needy Families (TANF), or Food Distribution Program on Indian Reservations (FDPIR).

IAP was created to offset the collapse of the Federal Communications Commission's (FCC) Affordable Connectivity Program (ACP), which provided a $30 per month discount off of the broadband bills of low-income Americans. The program was summarily discontinued after Republicans in Congress refused to fund a program extension.

According to Longmont officials, not only is their IAP program available to a much broader qualification base, with more than 1000 subscribers now enrolled, the program is currently helping 14 percent more city subscribers than the FCC’s ACP did at its peak.

Legislation that would require ISPs operating in Massachusetts to offer qualifying low-income households high-speed Internet service for $15 per month is set to have its first legislative hearing.

The hearing is slated to run from 11 am to 1 pm ET today before the Massachusetts Legislature’s Joint Committee on Telecommunications, Utilities, and Energy. Committee members will hear testimony on multiple bills, including two companion pieces of legislation known as An Act Preserving Broadband Service for Low-income Consumers – S.2318 (filed by State Sen. Pavel Payano) and H.3527 (filed by State Rep. Rita Mendes).

The proceedings can be viewed here.

Inspired by New York Law

The hearing in Massachusetts comes as similar legislation is being considered by state lawmakers in Vermont and California – all three of which are modeled on New York’s Affordable Broadband Act which, after numerous legal challenges, went into effect in the Empire State in January of this year after the US Supreme Court declined to intervene and overturn a U.S. Appellate Court ruling that upheld the law.

Like the New York law, the bill being proposed in Massachusetts requires ISPs operating in Massachusetts to offer qualifying low-income households high-speed Internet service for $15 per month.

However, the Massachusetts bill set the minimum speed at 100 Megabits per second (Mbps) download to mirror the increased FCC definition for minimum broadband speeds that had been raised from the previous benchmark of 25/3 Mbps, which was the federal standard when the New York law was written.