Adam Bender

Seeking to invalidate New York’s Affordable Broadband Act, ISP groups asked that the U.S. Supreme Court review a 2nd U.S. Circuit Court of Appeals 2-1 ruling that federal statute doesn't preempt the state law. However, SCOTUS should wait until lower courts finish reviewing the FCC’s net neutrality order, CTIA, NTCA, USTelecom, ACA Connects, the Satellite Broadcasting and Communications Association and the New York State Telecommunications Association said in a petition for a writ of certiorari Monday.

States may not be able to use money from NTIA’s broadband equity, access and deployment (BEAD) program to fund areas where an entity has defaulted on rural digital opportunities fund (RDOF) commitments, three state broadband directors said during a panel Wednesday at Mountain Connect in Denver. Should a company default on RDOF after NTIA has approved a jurisdiction’s dataset of available locations resulting from that state's or territory’s challenge process, “our hands are … tied” and BEAD can't fund that area, Sarah Baska, Georgia broadband director, said. “If we have remaining funds after we go through all the awards, we were told we cannot use those funds to … go back and rebid those areas.” Remaining money can be used only for nondeployment expenses, Baska added. Virginia interprets NTIA’s policy the same way, according to Chandler Vaughan, associate director of that state’s broadband office. “If we certify our challenge results with NTIA on Sept. 1 and there is an RDOF default on Sept. 2, we cannot get to that location under the BEAD program. No exceptions.” Arkansas State Broadband Office Director Glen Howie said NTIA should be aware of this concern. “Once our map is locked, our map is locked” and the state can’t do anything about defaults that occur afterward, he said. “It’s critically important that the federal government” understands that if there are defaults on any broadband program, “they have to be on the hook to find a new awardee,” said Howie. “That’s the only way that this thing will work.” At Mountain Connect this week, state broadband directors reported progress meeting BEAD requirements as they prepare to distribute $42.5 billion across the U.S. next year (see 2408070029 and 2408060048).

DENVER -- NTIA won’t abandon projects that experience construction delays in the broadband equity, access and deployment (BEAD) program, program leader Evan Feinman told the Mountain Connect conference on Wednesday. Many state broadband directors at the event reported progress meeting BEAD requirements as they prepare to distribute $42.5 billion across the U.S. next year (see 2408060048).

DENVER -- States are marching ahead to meet requirements for NTIA’s $42.5 billion broadband equity, access and deployment (BEAD) program and trying to distribute money to subgrantees next year, state broadband directors said during the Mountain Connect conference Tuesday. They were optimistic about having enough money to connect everyone, though they cautioned that the technology used will vary. Don’t be afraid to use satellite connections, urged SpaceX President Gwynne Shotwell in a keynote. “I don’t think the math works without Starlink.”

Electric pole owners raised labor shortage and other concerns with Kentucky Public Service Commission changes to state pole attachment rules that are meant to spur broadband. The PSC received comments Wednesday on emergency amendments that the agency filed May 31 with the Legislative Research Commission. The PSC previously received comments May 21 on a draft in docket 2023-00416 (see 2405220040). The PSC's "use of inflexible timeframes for make-ready requirements -- rather than continuing to rely on commonsense good cause provisions -- will only compound the problems posed by [a] national worker shortage,” a group of electric cooperatives warned. Someday, the current "trickle of applications will likely be replaced by a deluge that will stretch the Cooperatives’ staff and resources, frustrating pole owners and attachers alike,” they added. Duke Energy questioned the PSC’s plan that would allow an attacher with multiple applications to choose the order a utility should review them. Prioritizing a new application would reset the review period of an older application currently under review, under the change. But Duke said "the need to track priorities and reset timelines of individual applications will create confusion, inefficiencies, and an unreasonable administrative burden for the utility.” The electric co-ops also raised concerns about that change. “Giving attachers the ability to reprioritize their applications at their discretion -- which can just as easily be done internally by attachers before submitting applications to pole owners -- only complicates the challenge of obtaining the right number of contractors at the right times.” In addition, the PSC rules lack "adequate enforcement of timely payment,” the co-ops said. “The staggering amount of outstanding payments due to pole owners from broadband providers looms over this entire proceeding.”

NTIA expects it will finish reviewing most initial plans for the broadband equity, access and deployment (BEAD) program next month, NTIA Administrator Alan Davidson said on a conference call with Vermont broadband officials Thursday. Montana, Oklahoma and Vermont may access more than $1.6 billion combined from the $42.5 billion BEAD program, NTIA said earlier in the day. The federal agency approved volume 2 of each state’s initial plan. NTIA allocated about $628 million to Montana, $797 million to Oklahoma and $228 million to Vermont. NTIA has approved entire initial plans for half the 50 states, plus three territories and the District of Columbia. The pace of approvals has quickened lately, with NTIA clearing six plans last week (see 2407260035). Davidson noted an “increased cadence” of approvals, with the agency signing off on three or four plans each week. The NTIA administrator expects that pace will continue through the summer. While expecting the “bulk” of reviews to be done by September, Davidson said there might be “a few small stragglers.” Vermont is “very excited to move from planning to action,” said Christine Hallquist, Vermont Community Broadband Board executive director, on the same call. Vermont expects it will collect bids this fall and winter and hopes to start releasing funds in Q3 2025, Alexei Monsarrat, said a rural broadband technical assistant specialist with Vermont.

Alaska telecom industry groups urged state regulators to slow the pace of an already delayed proceeding to craft phone deregulation rules. The Regulatory Commission of Alaska had initially required comments by May in a renewed effort to implement SB-83, Alaska's 2019 telecom deregulation law (see [Ref:2404100058). However, because Alaska lawmakers approved a bill (HB-307) earlier that month clarifying the RCA’s telecom powers, it extended the comments deadline until July 29. However, the legislature only transmitted the bill to Gov. Mike Dunleavy (R) July 16, and he hasn’t signed it. On July 22, the Alaska Telecom Association (ATA) sought another extension at the RCA, but an agency spokesperson said Monday that it wasn’t granted. If HB-307 becomes law, the RCA’s proposed rules “may no longer be appropriate or applicable,” ATA wrote last week. The group suggested that the RCA provide 90 more days, until Oct. 28, to file comments so that parties can “provide thorough, constructive comments -- particularly comments that include proposed alternative regulation amendments in light of any statutory changes.” The Matanuska Telecom Association said Monday that the RCA “should not, and cannot, adopt the regulations noticed on April 12, 2024.” MTA agreed with ATA that the proceeding should be extended, saying that stakeholders “cannot adequately prepare useful, substantive comments, or alternative regulations proposals … while HB 307 awaits action before the Governor,” it said. Dunleavy has until Aug. 8 to sign or veto HB-307, the governor’s spokesperson said Tuesday. The bill would also become law if the governor didn’t sign it by that date. ATA Executive Director Christine O’Connor thinks the matter ultimately “will work out fine,” with another opportunity to weigh in likely to come, she said Tuesday. “The RCA still needs to issue draft regulations” for implementing SB-83 and HB-307, which would trigger another round of comments, she said.

Texas received $1.4 billion from Meta Tuesday, settling claims the Facebook parent captured biometric information in violation of state law. The same day, tech industry groups sued Texas over a kids’ online safety law. NetChoice and the Computer & Communications Industry Association (CCIA) said the 2023 law (HB-18), which requires that social media companies verify users’ ages and get parental consent for children younger than 18, violates the First Amendment in a way similar to a 2021 Texas social media law that went to the U.S. Supreme Court.

Telecom companies argued for more flexible speed testing rules in comments Tuesday at the Nebraska Public Service Commission. Some Nebraska requirements are too challenging, and the state should avoid duplicating FCC-mandated tests, they said. Sometimes the "costs of conducting testing exceed the benefits" of it, Nebraska Rural Independent Companies (RIC) said.

The New York Public Service Commission rejected calls by Charter Communications and others to make pole owners pay a portion of pole replacement costs when adding an attachment is required. The New York PSC on Monday released its order revising pole attachment rules after adopting the decision unanimously last week (see 2407180028). The PSC adopted one-touch, make-ready for simple attachments in the communications spaces, set dispute resolution time frames, created a pole-attachments working group and added annual reporting requirements (docket 22-M-0101). But it disagreed with arguments about changing a state policy that says that the attacher pays if a pole needs replacement only to accommodate the proposed new attachment, whereas the owner pays if the pole already needed replacement due to its poor condition. Charter and other attachers previously argued that owners benefit from replacements even in the first case and therefore should share costs (see 2403050043). But in Monday’s order, the commission said those companies provided no "quantifiable analysis" or other evidence supporting their assertions that PSC staff failed to consider a pole owner's incentive to shift replacement costs and incorrectly concluded that owners don't benefit from the replacements. Staff determined "that ratepayers do not receive any economic value of poles being replaced to enable third-party attachments even when the attacher entirely funds such replacements,” the PSC said. "Electric utilities do not have an incentive to require attachers to pay for pole replacements because utilities do not earn a return or depreciation expense on contributed assets such as third-party funded pole replacements.” The FCC declined in a December order to shift replacement costs to pole owners, the PSC added. And the PSC doesn’t want to see higher electric rates, it said. "While expanding broadband in New York is critically important, utility customer funds are not unlimited.” Also in the order, while allowing certain alternative types of attachments on a case-by-case basis, the PSC denied Verizon's request to open up the pole's electric space for telecom attachments. "The electric space is designated for qualified and approved electric workers and only includes electric facilities to help protect those working in that space as well as ensure the work performed is done professionally and to code to satisfy reliability and resiliency concerns,” the PSC said. “Opening up the electric space to additional or alternative pole attachment methods raises significant safety, reliability and resiliency concerns and negatively impacts these efforts."