Responding to Biden Administration’s Tech Neutrality
Rejection
By Michael O’Rielly
For decades in communications policy, Republicans and Democrats have uniformly supported the principle that government(s) should not pick technology winners or losers. This simple concept, best known as technology neutrality, has served our nation well, preventing countless missteps and allowing a greater chance for innovators to win the marketplace. Despite this great work, the Biden Administration recently rejected the concept in a key part of its latest broadband funding initiative at the National Telecommunications and Information Administration (NTIA) within the Department of Commerce. You don’t have to take my word alone: this exact point was included in a thoughtful critique of NTIA’s actions by some of the lead Senate authors of the broadband provisions.[1]
Effectively ignoring this basic principle (and the underlying law), the Administration essentially has done everything possible – absent strict mandates – to favor fiber broadband technology over any other when awarding the $41.601 billion in competitive grants under the Broadband Equity, Access, and Deployment (BEAD) Program.[2] In doing so, the Administration has unfairly penalized other innovative technologies, such as licensed fixed wireless access (FWA) providers or Low Earth Orbit Satellite systems. This has huge ramifications, including driving up broadband costs and deployment timelines in the short-term and leaving consumers unserved in the longer-term. For State Broadband Offices, which have been empowered by Congress to expand broadband access to the unserved families throughout the nation, it makes their jobs that much harder.
What is Technology Neutrality?
Technology neutrality is based on the simple concept that policymakers are not necessarily technologists or market experts. They are far and away not in a position to select which technologies should be allowed to succeed and which ones should fail. Instead, healthy reliance and trust is placed with the innovators, manufacturers, market researchers, and ultimately the consuming public to determine which products and services will capture the attention of consumers and enterprises. This doesn’t come blindly, as policymakers often enact parameters or broader requirements to roughly shape the offerings to be made. Industry associations also can prevent complete freewheeling by enacting and adopting standards and specifications. Within this larger framework, however, it is the private marketplace that gets to decide the future of technology.
This structure has proven highly effective over command-and-control approaches, as it inherently incorporates market demand into the equation while removing the subjectivity of elected or appointed officials. History is replete with example after example of applications of technology neutrality that generated surprising results as to which features and/or functions were more important for eventual adoption. Does anyone remember when VHS media players beat the more robust but pricier BETA versions? Reversing technology neutrality comes with the belief that the technology selected is absolutely correct for all applicable situations.
Adherence to the principle doesn’t leave policymakers without a role, it just directs their attention and authority to a much higher regulatory layer. Consider that there is a notable difference between suggesting or even pushing industry to decide on a uniform phone charging port (a dubious policy for sure) and mandating that a future one can only be USB-C, as the European Commission recently did (even more outrageous). Likewise, government officials can set minimum performance requirements for programs without selecting a particular technological outcome, as the FCC did in 2019 with the Rural Digital Opportunity Fund (RDOF).
In the case of broadband, rejecting technology neutrality doesn’t make sense. Fiber is an absolutely wonderful technology. With the right electronics, it allows for digital communications at fast speeds, high capacity, low latency, and high longevity. It just so happens to be expensive to purchase, often hard and time-consuming to deploy, difficult to obtain, and uneconomical in situations. Other technologies, namely FWA and LEOs, can offer comparable functionality without some of the downsides. For instance, FWA can provide greater resiliency compared to aerial fiber builds, common architecture for rural deployments. Moreover, these alternatives are improving at galactic speed, reducing any perceived deficiencies, and can serve as gateway technologies for decades to come with enormous benefits – not harm – to the consumer or enterprise Internet access experience. Simply put, non-fiber technologies can offer far greater deployment timelines, which may matter tremendously to an unserved consumer: a few months compared to fiber’s multiyear builds. That is not to suggest, all things being equal, that fiber is inferior but all things being equal requires consideration of other factors into the equation, which must include cost and deployment speeds.
It is particularly egregious to ignore or denigrate the capabilities of FWA as a broadband technology. Today, millions of American families use fixed wireless as a means to obtain Internet access, and its growth expectations are substantial.[3] The technology uses spectrum, whether licensed or unlicensed, to beam wireless Internet from tower or antenna points to individual locations. For functionality, the technology has shown to be capable of, depending on certain conditions, offering multi-hundreds of megabits per second high-speed, high-capacity Internet access (and upwards of a gigabit or more[4]) with comparable downloads. Verizon’s residential FWA offering, 5G Home, is up to 300 Mbps for $25.00 per month. Over the last many years, FWA has been the drink of water in a desert for millions of rural Americans. Their livelihoods and lifestyles have depended on those connections. Why would government officials turn their backs on that contribution to rural economic development? Everyone should also acknowledge that a very tiny number of consumers, if any, come close to needing more than these capabilities today or in the near future.
The Infrastructure Law & the NOFO
While the broadband provisions within the Infrastructure Investment and Jobs Act (IIJA) may have been drafted by a few members of Congress, the resulting text was consecrated by a majority of members and then signed by the President. According to the law, “The Assistant Secretary shall, to the extent practicable, carry out this title in a technological neutral manner.”[5] Use of the verb “shall” should be viewed as removing any discretion by NTIA, and reliance on the inclusion of the phrase “to the extent practicable” does not undermine this requirement. Admittedly, the statute provides NTIA latitude to define broadband performance criteria, it does not provide a carve-out to the technology neutral requirement, beyond the extent practicable clause. It is not reasonable to suggest that adopting a technology neutral selection for underlying broadband technology is not practicable since it has been done by many other federal agencies in the broadband sphere. Arguably there are other provisions where the extent practicable clause may be applicable, but not in the selection or approval of acceptable broadband technology.
Despite the statutory language, NTIA has effectively declared fiber, a non-technologically neutral approach, as the default selection for funding by determining that “Priority Broadband Projects” are those that use end-to-end fiber-optic architecture[6]. NTIA officials have reiterated this point by multiple officials, including comments by Andy Burke of NTIA who stated that “You will see that we have clearly expressed a preference for fiber.” Moreover, the NOFO confirms early in its Overview that, “the Program prioritizes projects designed to provide fiber connectivity directly to the end user.”[7]
Here again, the recent Senate letter provides helpful input and rebuttal. It states, “the law prioritizes those providers who can deliver the buildout speeds we require with consistency, have the ability to scale speeds up over time, and are able to help support the deployment of 5G and other advanced services throughout its useful life. The NOFO contradicts this by explicitly stating that fiber is the only technology that can meet the definitions of a priority project. That is not the case. Never in the legislation did Congress stipulate that one technology was able to meet these needs above any other. Fiber, fixed wireless, and cable providers have all demonstrated an ability to reliably serve customers at the 100/20 Mbps required speed, an ability to scale up service over time, and an ability to support deployment of other advanced telecommunication services.”[8] In addition to these alternatives, keep in mind that unlicensed FWA and LEOs may be capable of meeting this standard too, and these alternative technologies will most likely only continue to improve.
FWA Ramifications
The decision to ignore tech neutrality permeates how the NOFO funding will be allocated for FWA networks and other applicable systems in at least two ways.
Licensed FWA
The good news is that the NOFO allows FWA networks using hybrid licensed and fully licensed spectrum networks to be selected as subgrantees (i.e., broadband providers) by state broadband offices. The NOFO defines “reliable broadband service” to include fiber-optic technology, cable hybrid fiber-coaxial, DSL technology, and terrestrial fixed wireless technology utilizing entirely licensed spectrum or using a hybrid of licensed and unlicensed spectrum. This last clause means that there is definitional exclusion for FWA licensed and hybrid offerings, as exists with other technologies. That said, the NOFO requires state broadband offices to select “priority broadband projects” – i.e., fiber builds – anywhere there is a qualified fiber applicant and absent an NTIA waiver to pick an acceptable alternative technology including applicants with locations exceeding the Extremely High Cost Per Location Threshold. The NOFO specifically states, “NTIA has determined that ‘Priority Broadband Projects’ are those that use end-to-end fiber-optic architecture.” Beyond ignoring tech neutrality, this structure adds an extra hurdle for a state to select FWA licensed or hybrid systems to serve its citizens.
FWA licensed offerings are not likely to have spectrum congestion issues, as the licenses were obtained at market and include exclusive use rights. In fact, licensed FWA providers architect their systems and utilize the appropriate spectrum bands to ensure service quality for users. Does anyone really believe that users of T-Mobile’s successful FWA offering[9] are bypassing a fiber product by accident or somehow welcome an inferior service? With upwards of two million recent customer adds this year, licensed FWA seems to be treated by the market as a broadband alternative.
Policy wise, NTIA’s decision is potentially troubling as it narrows where an exceptionally constructed, highly capable FWA licensed or hybrid network would be eligible to receive BEAD funds. On its face, it seems to inappropriately treat those offering these systems as second-class service providers, letting qualified pure fiber builders pick their desired territories and leave any remnants of unserved (and eventually underserved) areas to licensed FWA and others. For states trying to ensure that every citizen obtains broadband access, this limits their options to improve cost efficiencies, thereby increasing the likelihood of running out of overall funding. U.S. policy has made clear: NTIA owes it to taxpayers to connect every American household and that requires all technologies. It should be criminal for this problem to exist when this program concludes.
On the provider side, limiting FWA licensed and hybrid spectrum networks to this universe, while excluding its use in areas that may be more fruitful, will likely result in fewer applicants, and consequently, participating providers. Consider that fewer applicants in an effective reverse auction for competitive grants, for instance, means less competition and ultimately fewer matching funds from the subgrantees, and thus more NTIA funding. Did we somehow forget that the RDOF scoring rubric meant baseline FWA applicants kept gig-tier applicants honest in the support funding they would be willing to accept?
Unlicensed FWA
For FWA networks using only unlicensed spectrum, the NOFO deems them as not “reliable broadband service” meaning that the technologies face a higher set of hurdles, requiring an NTIA waiver and then in only “extremely high cost per location threshold” (EHCPLT) areas.
Categorically discounting unlicensed FWA projects (except in EHCPLT areas) should be viewed as objectionable as it ignores the real-world application of unlicensed FWA networks operating today. Networks that deliver capable and reliable broadband to both urban and rural consumers today. In fact, many rural parts of America have only a FWA network as an option because it is uneconomic to build a wireline network. To the extent the subsidies in the NOFO remove cost as an issue, it doesn’t undermine the historical value brought forward by unlicensed FWA providers or justify that these networks be summarily excluded from funding.
Additionally, the loudest objection to unlicensed services usually is based on uncertainty to obtain spectrum and possible band congestion. Yet, in many of the unserved and even underserved areas of America, unlicensed spectrum is not necessarily subject to such constraints. One only needs to take a look at the CBRS Priority Access Licenses to see where licenses were not claimed as a measurement of crowding in these markets. In congested areas, new radio technologies such as beamforming and noise nulling enable unlicensed spectrum to perform comparably to its licensed counterparts. Further, to the extent existing unlicensed bands are congested, new bands – including 5.9 GHz and 6 GHz – are coming to the market in short order. Policymakers should be raising questions over the delay to complete any necessary proceedings so these bands can be put to use for broadband expansion.
State Broadband Office Options
It seems safe to assume that NTIA is locked into its approach and sadly will not be changing the NOFO, notwithstanding the views of key Senators in the recent letter. Absent other funding, there should be real questions as to whether NTIA’s focus on fiber will ensure there is enough money to fund every unserved location.
Even with the elevated subsidies under BEAD, it’s almost a guarantee that many states may have to use the Fiber-only waiver or the EHCPLT waiver processes to some degree. States and Territories are required to file their five-year broadband plans next now that all have provided letters of interest to participate in BEAD funding. These five-year plans will serve as a good sanity check and indication of whether alternative technologies beyond fiber are needed to steward NTIA funding. Given that the States and Territories are charged with bringing broadband to all unserved (and then underserved) locations, how can they best react to the NOFO’s waiver processes while ensuring their five-year action plans to best fit the needs of their constituents?
1. Seek Clear Waiver Criteria
States should be seeking clear guidelines and specific criteria from NTIA of exactly how the waiver processes will work and how readily petitions will be granted. While NTIA has sent signals in the broadband community that it will liberally approve these petitions, such private assurances are not worth all that much given NTIA’s ultimate rejection of tech neutrality. Putting state broadband officers in an impossible position of risking billions in federal funding on a wink and a nod that federal bureaucrats will not enforce their clear fiber-preference guidance is not acceptable. States should expect, and more appropriately demand, a more defined criteria to make sure their broadband plans are not rejected by NTIA or OMB and as a result the efforts required to complete them are wasted. And this needs to be done publicly and early, otherwise other technologies are likely to skip even seeking participation. Moreover, States and Territories should expect that there will be a presumption in favor of granting any waiver submitted.
2. Liberally Apply Waiver Asks
NTIA intentionally built waivers into the NOFO and did not include discouraging language, meaning that it should fully expect that States and Territories will seek waivers. Accordingly, NTIA officials should be held accountable to this guidance (and in subsequent public comments of waiver receptivity). That means States and Territories should actively build waivers into their five-year action plans, advocate that FWA and other alternative technologies submit applications, and generally welcome the waiver process, rather than seeing it only as an emergency-only case option. At some point, it would also be rational to move to a pro forma, properly structure waiver process to minimize confusion and bureaucracy.
3. Set EHCPLT at Reasonable Levels
Similarly, States and Territories should consider setting their respective EHCPLT at reasonably lower levels to account for funding issues and needs of unserved residents. If these thresholds are set too high, then alternative providers will not have sufficient locations to make business cases to reach the remnant locations left after other grants are awarded.
* * *
[1] Letter to Sec. Raimondo BEAD NOFO Aug 18 2022 (senate.gov)
[2] This represents the $42.45 billion minus the minimum administrative costs retained by NTIA as allowed in the statute. See NOFO p. 29.
[3] See
for example, Global Data US fixed wireless access subscriptions
will capture 9% of broadband accounts by 2026 driven by user demand and
government intervention & Advanced Television
Research: T-Mobile to top US 5G FWA connections | Advanced
Television (advanced-television.com)
[5]
See Section 60307(b) of the IIJA.
[6]
See pg. 42 BEAD NOFO
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