Friday, January 15, 2016

What is wrong with internet public policy and how to fix it in a public comment to a federal agency

I'm a big fan of administrative law. I know it might seem boring and pointless to some. But I became a fan because I've spent years learning how administrative law works by learning how to use the federal Freedom of Information Act and the Privacy Act to request documents about myself and the government that serves me. Along the way, I learned how Congress delegates authority, and how federal agencies act on that authority.

First, let me say kudos for some fantastic writing by Chris Mitchell of the Institute for Local Self-Reliance on the policy problems that have made high speed affordable internet access so hard to come by, particularly in rural areas. Affordable high speed internet access looks like what they have in Chattanooga, Tennessee: 1 gigabit, up and down, for $70 a monthThis document is like a primer on what we can change to restore leadership to the United States in this realm. 

So let me tell you how I found it and along the way, a little bit more about how federal regulations come about. I started out reading the home page of Community Broadband Networks. They had a very interesting story about a municipal network in the state of Washington called NoaNet that has been operating a fiber network for 15 years. It was a point list of their successes along the way.

In that list, I found this, "the federal Broadband Technology Opportunities Program". Interesting. So I did a search for it just to see what would come up. The first link in the search results took me here, to the National Telecommunications and Information Administration website. There I found a map with a link to the Broadband Opportunities Council. And from there, I found a link to a request for comments with a long list of mostly unfamiliar names. The list links to comments submitted, click on a name and you see the comments they submitted in response.

Among the names on the list, I found Centurylink and another one from the state of Utah. But both of them were long, convoluted and full of legalese. I remembered to look for names I knew, like Christopher Mitchell and the Institute for Local Self-Reliance (I follow them on Twitter, too). Didn't find Chris in the list, but I did find the ILSR. So I clicked on that link and found myself reading a PDF of their comments (written by Christopher Mitchell) for about 30 minutes. It was well worth the read. The PDF, was attached to an email and reads as follows:

From: [email info omitted]
Lisa Gonzalez
Christopher Mitchell
Broadband Opportunity Council
Wednesday, June 10, 2015 1:05:28 PM
ILSR Comments to the BOC - June 10 2015.pdf
Please accept the attached comments from the Institute for Local Self-Reliance for
the Broadband Opportunity Council Notice and Request for Comment [Docket No.
Feel free to call with any questions or concerns.
Lisa Gonzalez
Lisa Gonzalez
Community Broadband Networks Initiative
Institute for Local Self-Reliance and
[phone number omitted]

Federal agencies often request comments on regulations they're writing, and forms they are planning to offer to the public for use in communications with the agency (think Form 1040 for the IRS). In this case, it is a general request for comment, not for a particular regulation or form, but for direction in how to regulate federal funding for rural internet access. It's important to note that all federal agencies send out requests for comments, yet most people are unaware of this process. Note also that anyone can send in a public comment response to a request for public comment.

Here is a short overview of how federal regulations come into being (we call it "agency rulemaking"):

  1. Congress and the President create a new law.
  2. The law delegates authority to an agency, usually the head of the agency, often the cabinet level secretary. 
  3. The law authorizes the agency to write regulations to implement the law.
  4. The agency must publish notice of proposed regulations and forms in the Federal Register.
  5. The agency must seek public comment on the regulations and any forms used to implement the law and consider those comments when writing the regulations and designing the forms.
  6. When public comment closes, the agency reviews the comments, adjusts the forms and regulations and makes them final with publication in the Federal Register and the Code of Federal Regulations.

ILSR is what we call an NGO, a non-governmental organization, usually a non-profit organization. ILSR made themselves aware of this request for comment and took the time to research the issues they felt were most important and wrote a very professional document to describe what they see are the biggest problems with federal funding of rural internet access. Their comments are like a list of everything that is wrong with internet access deployment today, and what we could do to fix it.

Here are a few interesting takeaways to whet your interest should you be on the fence about reading it:

Remove barriers to local choice. ILSR identifies state level barriers to local internet choice as the single greatest impediments to improve internet access. These barriers prevent cities and small towns from dealing with the problem themselves, even though they are the most motivated to solve it. These state level barriers come in the form of bills written by incumbent ISPs, usually through a proxy like the American Legislative Exchange Council, aka, ALEC. Apparently, there is market for buying and selling laws.

Prioritize Locally Accountable Networks. When reviewing funding candidates, give priority to local networks that are accountable to the people they serve. For example, Centurylink is a national internet access provider. Their management doesn't see the people they serve and are engaged in absentee ownership of the network that serves my neighborhood. A local organization or utility, like a coop that owns a network in my neighborhood has a greater motivation to provide the best service because they are closer to the people they serve. We might actually see each other while shopping.

Anti-monopoly policy."Large and powerful providers have the ability to influence adoption of rules and find ways to circumvent them. Most recently, in Central Missouri, the Co-Mo Cooperative is
finishing deployment of a gigabit network in its territory with no public subsidies.
CenturyLink, recipient of over $10 million in Connect America Funds, intends to overbuild a competitive network in those same areas. This reaction comes after years of ignoring local requests to improve services in the area." In other words, lower the barriers to entry in the market for new entrants. This keeps the incumbents on their toes and willing to serve.

Improve reporting maps and include rate information. When people decide on where to live often they consider internet access. I know I did. Since I started using the internet, I began to check for access before I moved to ensure that I had something when I moved in. There have been some viral stories about people who, before buying a house, checked and checked again, only to find after moving in that service would not be available, or only available after paying a very high fee to get it installed.

These are just a few of the highlights of the document. The problems identified in the comments provided by ILSR are not just for rural internet access. They apply across the board, all over the United States. The ILSR has provided clear direction in how can we can improve internet access nationally and how to level the playing field so that when incumbents feel that they don't need to respond to demands in the market, someone else can, whether it be private, public or a private-public partnership to get the work done.

As more than 450 cities have found, if the incumbents fail to act, then you have to do it yourself. But those same cities were met with intense lobbying efforts on the part of the incumbents to prevent them from solving their own problems. The problems with internet access were created by public policy written for the few, not the many. It is up to the many (that's the rest of us), to get involved wherever we can to influence public policy the way we want to see it done.

If you just vote, you get to decide who writes the laws and cut the checks. If you just fight it in court, it's probably too late. But if you participate in the agency rulemaking process, you help agencies decide how the laws should be implemented.

You know the legislative and judicial branch of governments. You know how to vote and how to appear in court for a traffic ticket. Participating in the agency rulemaking process is your opportunity to decide how a law should be implemented and interpreted by an agency. You get to tell the executive branch how to execute the law.

What was the problem again? Oh, yeah. I remember now. How to deploy affordable high speed internet access nationwide - without interference from incumbent service providers. This is the problem we all must solve, together.

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