Defining “public use” for broadband

Defining “public use” for broadband
The State Broadband Office is trying to define “public use” as part of a 2019 state law creating a broadband grant program to improve access in Washington state. Photo: freepik.com

The legislature last year enacted a law creating the State Broadband Office (SBO) within the state Department of Commerce to expand access to all of Washington. Roughly 94 percent of the population has terrestrial broadband access, and the state’s goal is to have universal broadband by 2024. To accomplish that, state officials face numerous financial and legal issues associated with the costs and public use of the projects funded.

One of the tasks currently underway by SBO is identifying areas where broadband is needed, while the Public Works Board just concluded a broadband construction grant and loan application cycle available to local governments, tribes, and private businesses. The program set up under SB 5511 currently offers $17 million in grants and low-interest loans.

SBO Director Russ Elliott told the Public Works Board at its Sept. 11 meeting that his office is also preparing broadband projects for potential state and federal funding, saying that the cost of reaching the last mile of service “is going to be hundreds of millions to billions of dollars.”

Elliott added that private investment has been secured from some providers. “We ask them if they will extend network services; if not we ask why, and continue conversations. “(The) Broadband Office is really trying to approach the discussion as a community type of planning…community opportunity to identify areas of need.”

State and federal investments are likely to be a major portion of paying for full broadband access in Washington. In January Mason County PUD 3 obtained a $2.4 million grant from the U.S. Department of Agriculture to as part of the federal agency’s ReConnect Pilot Program; the grant enabled the PUD to extend gigabit-speed fiber-optic service to 250 residences and businesses in its jurisdiction.

“(There’s) still a lot of our county that doesn’t have access,” County Commissioner Sharon Trask said during the Sept. 11 meeting.

The high overall costs and numerous public and private entities involved inevitably raise questions as to what extent they should contribute to broadband expansion. Senate Ways and Means Chair Christine Rolfes (D-23) recently told Lens that the “current situation benefits cable companies. We can’t give the telecoms billions of dollars to support themselves.”

During the 2018 legislative session, Rolfes sponsored a bill ultimately approved by both chambers setting up a pilot program allowing the Kitsap Public Utility District (PUD) to provide end user Internet services on the PUD’s broadband network.

SB 5511 caps funding for most broadband grants at $2 million, or 50 percent, of the project’s costs, though it allows for up to 90 percent funding in a “distressed area.”

In the meantime, SBO and Public Works Board must flesh out the 2019 law’s 15-year public use requirements for private broadband projects that receive public grants or funding by deciding just what constitutes “public use”.

Broadband Program Director Shelley Westfall told colleagues that “is one of the biggest issues…because there is no definition in statue.”

“How we define ‘public use’ is critical to the contracting process,” Washington State Assistant Attorney General Sandra Adix said.

A proposed definition from SBO would read as follows:

“For private broadband infrastructure built with public funding support, there is an Indefeasible Rights of Use (IRU) agreement for public entities to traverse the network infrastructure to provide service to additional stranded service areas.”

In short, this would create a permanent contract agreement giving public entities access to the infrastructure for 15 years for future expansion projects. However, some Public Works Board members indicated the definition may be too ambiguous.

Elliott cautioned that a lot of internet providers “will not agree to just total open access if they are to build out their infrastructure. Some of them will, but many of the big existing providers will have a big problem with that.”

The board eventually voted to table the discussion until a revised definition could be created. SBO must submit a report to the legislature in January regarding changes to broadband availability and use in the state, as well as an overview of broadband infrastructure and possible legislation to accelerate expansion.

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