EFF Legal Intern Emma Hagemann contributed to the corresponding comment.

The National Telecommunications and Information Administration (NTIA) has big decisions to make in its effort to implement the new federal broadband infrastructure program. If done right, and with the right state policies in place, a great number of Americans will obtain access to multi-gigabit broadband in the coming years.

EFF sent comments to the NTIA urging them to fund the deployment of open access fiber networks, properly vet all projects seeking funding, and provide assistance to motivated local and regional entities who want to build their own open-access networks. This framework should allow the NTIA to best distribute the more than $48 billion of broadband funding allotted through the Infrastructure Investment and Jobs Act (IIJA), and deliver to all Americans access to reliable, affordable, high-speed broadband.

The NTIA Should Fund Open Access Fiber Networks

The law calls for establishing projects that (1) provide service that meets speed, latency, reliability, and consistency requirements, and (2) can easily scale speeds over time to meet evolving needs. As such, the NTIA must consider not what is good enough for today, but what meets the standards of 20, 30, or even 50 years into the future.

After years of technical research, and comparison to all other last mile options, EFF has concluded that open access fiber is the ideal model and transmission medium. It  not only provides every American with service that is future-proofed in speed, consistency, and capacity, but does so in a cost-efficient, self-sustaining manner.

Fiber-optic cable infrastructure, unlike the coaxial cables commonly used today, or the now-obsolete copper phone lines, is the only infrastructure that can be upgraded to achieve the performance needed for decades to come without significant new investment. Current research shows that a single fiber-optic cable today can transmit over 300 terabits per second over hundreds of miles; in theory, it can carry even more years from now. The infrastructure has long proven able to deliver low-latency, high-bandwidth, and extremely reliable service.

With the inherent superiority of fiber, an open-access network becomes the only model that can economically deliver the full range of services and applications that need high-capacity infrastructure  to even the most unserved and high-cost regions of America. In an open-access network, the entity who builds the physical fiber-optic infrastructure is prohibited from selling broadband services. Instead, they lease the capacity of their infrastructure to internet service providers who, in a state of competition, are incentivized to deliver high-quality, low-cost service to as many people as possible. EFF’s own cost model study finds that an open-access network could cover nearly 80% of US households without government subsidies. A traditional broadband provider can only reach 50%. Should the NTIA disburse a significant portion of its $48 billion to build open-access fiber networks, it will set in motion the ability for states to eventually service every US household with high-quality, low-cost service for decades to come.

The NTIA Should Avoid Funding Projects That Overpromise and Underdeliver

The NTIA should vet those seeking project funding to ensure they have the proper operational and technical capability to deploy the services promises, and the commitment to see a project through. As part of the process, we urge the NTIA to be as publicly transparent as possible with their reviews and allow opportunities for additional input if necessary. There must also be a means for the NTIA to ensure funds are used properly and effectively after they are awarded.

Rigorous scrutiny is necessary to avoid mistakes made in past federal policy. During the Federal Communications Commission’s (FCC) Rural Development Opportunity Fund (RDOF) process just last year, lack of scrutiny resulted in federal dollars being awarded to entities that cannot deliver on their promises, and face clear barriers to scaling for future demand. Specifically, more than $2 billion went to just two companies. One of those overpromised, basing their proposal on an unproven means of delivering last mile broadband access. Another proposed a deployment strategy that is doomed to underdeliver. There must be due diligence ensuring the $48 billion dollars are properly spent to avoid speculative and intentionally anti-competitive bids designed to stall or outright prevent fiber infrastructure providers from connecting homes to the gigabit future.

The NTIA Should  Help States and Localities to Build Their Own Networks

Many cities, municipalities, rural cooperatives, and other local entities in unserved and underserved areas are tired of being left behind by monopolistic internet service providers (ISPs). These local public entities want to go about it themselves, but many lack the logistical expertise to apply for grant funding, or technical expertise to build out a network. The NTIA should recognize pre-existing local desires to create their own internet service, and provide these folks with the resources they need.

There is precedent for federal agencies taking a hands-on approach to building infrastructure. That’s how rural electrific grids, many still in operation today, were initially built. EFF proposes the NTIA establish a franchise-like model of broadband deployment. The NTIA should lend its expertise to motivated local partners, who will develop and maintain fiber-optic broadband networks that serve their communities. This should include assistance in accessing grant funds, and training on building future-proof fiber networks. Where different local partners will have different needs, the NTIA should be prepared to offer a wide variety of assistance options, like workshops,telephonic troubleshooting, and grant-writing assistance.

The national ISPs failed large parts of rural America. Just as the rural electrification effort created infrastructure that continues to power rural America, the up-front effort of teaching localities to build their own networks will connect Americans for decades to come. 

EFF’s comments also emphasize: 

• The need to avoid a ‘first worst’ strategy in grant assessment. Some say initial funds should only be given to those addressing the worst areas first. This only penalizes those who have been proactive in addressing their unserved communities. Proactive actors should be able to move on to addressing the next worst, the underserved. 
• The viability of long-term low-interest financing to build out open access fiber-optic infrastructure. 
• The need to condition grants on open access and universal deployment. 
• How to prioritize funding smaller, local entities with smaller grants, instead of giving big ISPs funding that they have historically squandered. 
• The existence of fiber proof of concepts in urban areas like Chattanooga and rural areas like a portion of rural Missouri with a population density of 2.4 people per mile.  

You can find EFF’s report on the superiority of fiber here, and the study we funded on open-access fiber here. Our full comment to the NTIA can be found here.