(Remarks as Prepared for Delivery at the Seattle University School of Law)

Good evening. I’m honored to speak tonight at this alumni celebration and launch of the TILE program. I especially want to thank my long-time friend, Dean Tony Varona, for inviting me. We grew up as communications lawyers together and we have always been each other’s biggest cheerleaders. The Law School is so fortunate to have such an amazing Dean.

Tonight, I’m going to discuss why universal access to affordable, robust broadband is a matter of social justice and necessary for a thriving democracy. That might seem obvious to many of you—how can one fully participate in our society, our economy, our education, health care and financial systems or our democracy without a broadband connection? But in my 35 years of working to ensure that every American household has affordable access to communications networks of all kinds, it has been a struggle to convince funders, policymakers, the press, and a broad range of civil society organizations that communications policy is anything more than highly technical economic policy that, while important, is a secondary issue that isn’t core to their goal of creating a just society.

Here are two stories that illustrate the challenge—one from 30 years ago and one from last month.

When I was a young lawyer, I worked for a public interest law firm called the Media Access Project. At MAP, we litigated at the Federal Communications Commission and the Federal Courts, trying to get the agency to adopt regulations that would result in broadcast and cable systems that covered local news and public affairs programming; that treated controversial issues of public importance fairly, and which resulted in diverse ownership and programming.

MAP had just 3 employees, in part because few if any of the big national foundations funded communications policy advocacy. In their minds, our work was too inside baseball, too technical, and was economic policy, not social policy. But a good number of them funded initiatives to promote democracy, so we changed our pitch. We argued that a healthy democracy requires diverse local media that provides viewers with the news and information they need to make informed decisions at the ballot box; and that the way to achieve this goal was through policies that make broadcasting and cable more diverse and more responsive to their communities.

The argument largely fell on deaf ears, until I met with a program officer at the Ford Foundation named Marcia Smith, who worked for the Democracy and Governance Program. She was and still is a documentary film maker and understood the power the media could have over public discourse and public opinion. She gave MAP what was at the time a big grant—$50,000, but it was also one for which she didn’t need the permission of her bosses. Which was a good thing, because when they found out, she was told never to do so again—to them, she had gone outside her lane of funding organizations that protect things like voting rights, election integrity and democratic institutions.

The second story involves a state LGBT rights group. The organization had been very supportive of my unsuccessful bid to get confirmed to be an FCC Commissioner, and the policy director is a good friend. At a recent dinner, she asked me whether the organization should sign a letter supporting the effort of one of the nation’s largest cable companies to get government funding to build broadband networks in rural parts of her state. I said, “Hell no, they were probably the company most responsible for my not getting confirmed.” Give me another reason, she said. I replied, "For 60 years, this company has refused to serve households in poor urban and rural communities—what makes you think they’ll do it now?” Her response was telling. She said first, “There’s no quid pro quo.” And after I pressed her some more, she said, “But they’re our donor.”

Both stories reflect the same challenge—organizations and institutions that seek to promote social justice and democratic values tend to see communications—and specifically broadband policy—as something that is too technical and not core to achieving their goals. Upload, download, latency, Megabits, Gigabits, Fiber to the Home, Fixed and Mobile Wireless, Coaxial Cable, Satellite, Spectrum—it’s all so complicated!

Let’s set aside that technical mumbo jumbo and talk about a utility we all know and understand—electricity. It makes everything run—our lights, our appliances, our technology, and, now, our cars. You turn on the switch or put a plug in an outlet and it just works. Nobody receives “more” or better electricity. According to the World Bank, 100% of American households have access to electricity.

Now let’s imagine an alternative reality where 42 million Americans or one in five US households have no electricity—either because the electric company doesn’t want or can’t afford to build lines to their homes, or because electric service is too expensive or unreliable. In that alternative reality, 57% of adults making under $30,000 annually have electricity at home, compared to 92% making over $75,000, while 41% of adults making less than $30,000 don’t have lights in their homes, so even if they had electricity, they could not use it. Imagine too, that 71% of black adults and 65% of Hispanic adults have electricity at home, compared to 80% of white adults.

You’d be appalled, perhaps even outraged, because nobody in 2023 should have to live without electricity in their homes. It wouldn’t be fair for low-income households, communities of color, and rural residents to have to go to a school, library or other building with electricity to watch television, listen to the radio, work and study, while wealthier, white households have the luxury of always-on electricity in their homes any hour of the day. 

Now substitute the words “broadband Internet access” for “electricity,” “slow” for “unreliable” and “computers" for “lights” and you have recent data on how wide the digital divide is in America. The data for total unserved Americans comes from the research organization Broadband Now, the data for unserved American households comes from the National Telecommunications and Information Administration, a part of the Commerce Department known as NTIA. The demographic information comes from the Pew Research Center, which breaks down both Internet and technology use by a wide variety of categories, including age, race, gender, income, education and type of community.

Are you equally appalled and outraged by the digital divide?

Less than 5 years ago, some policymakers and broadband industry representatives were arguing that Internet access was a luxury, not a necessity; one that was largely used for frivolous activities like video games and social media. They would argue that if one really needed Internet access, you could go to a library or work and your child could go to their school.

Then the COVID-19 pandemic hit the United States.

I’ll never forget Friday March 13, 2020. Schools and businesses closed, and millions of families went into lockdown. My phone started ringing off the hook—reporters wanted to know: "How will children without Internet or a computer at home go to school? If offices shut down, how can workers do their jobs?  And what about residents of rural areas without Internet access who might have to drive a hundred miles or more to see their doctor? How will people stay in touch with their friends and families or shop if they are too immuno-compromised to go to the grocery store?"

The picture that changed millions of minds showed two students in Southern California doing schoolwork outside a Taco Bell, using its Wi-Fi. It took a medical emergency for the public to take notice that broadband Internet service, like electricity and water, is a necessity for everyone, not just wealthy and privileged individuals and communities.

Internet access has been available to US households since the early-1990’s and high-speed broadband access came to market around the turn of the 21^st century. Yet tens of millions of Americans either have inadequate or no Internet access, cannot afford access, or lack a device or the digital literacy skills to use either the device, the connection or both. Compare this to how the country handled rural electrification. When Congress passed the Rural Electrification Act in 1936, 90% of urban households had electricity compared with just 10% in rural areas. Just nine years later, 90% of rural households had electricity.

What accounts for the difference? Years of carefully crafted laws and policies that put a premium on public ownership of electric service; ensured affordability by regulating rates; and only much later introduced competition from the private sector. As one of the cornerstones of President Franklin Roosevelt’s New Deal, the Rural Electrification Act allowed the federal government to make low-cost loans to farmers who had banded together to create non-profit cooperatives for the purpose of bringing electricity to rural America. These member-owned co-ops are locally controlled public entities with one charge—to provide affordable, sustainable electricity on an equal basis to its members.

Contrast this with how Congress chose to structure the market for broadband Internet access. Thanks to laws like the Cable Act of 1984, four decades of deregulation and an obstinate refusal to treat broadband like a utility, the market is dominated by private entities that have one goal—maximizing the return on their investment. This goal determines who gets service and at what price and quality. It is why numerous studies show that wealthy urban and suburban neighborhoods receive better quality service at lower prices—sometimes with a choice of 2 or 3 providers, while poor urban and rural residents suffer with slower service at higher prices from one provider, if they have a provider at all. 

There are scores of electric and telephone co-ops that provide broadband to their members, and about 600 networks are owned by local communities. Like rural electric co-ops, these locally-controlled broadband providers have one goal—to provide affordable, fast and reliable broadband to every resident in their communities. But these providers have had to fight the well-heeled efforts of the private sector to pass laws that either prohibit or limit their ability to operate. Today, 16 states have restrictions on the freedom of a community to choose the broadband network that best serves its residents.

Let’s face it: it’s too late to put the genie back in the broadband bottle. The private sector in broadband is here to stay. To its credit, Congress has over the past two years made historic investments in new broadband networks and digital equity, which includes affordability, devices and training on how to use the Internet and its associated devices. In late 2021, Congress passed a bipartisan infrastructure law, that among other things, provided $42.5 billion to the states to build new broadband networks in unserved and underserved areas, and $14.2 billion to create the Affordable Connectivity Program, which is a $30 a month subsidy for broadband service for low-income households. This is in addition to two previous laws that provided billions more for broadband deployment in states and on tribal lands.

So how can policymakers and the public ensure that this historic investment actually achieves the goal of affordable and robust connectivity for all US households regardless of income level, race, ethnicity, age or gender? From 2010-2020, the federal government spent somewhere in the neighborhood of $60-75 billion to connect US households, yet still one of five households are disconnected, and many others have slow service inadequate for the today’s needs. What needs to change?  How can we achieve full digital equity – where everyone, regardless of who they are or where they live, has and can use high speed broadband? Trust me, I have a lot of ideas for what state and federal policymakers should do, but let me suggest just three:

1. Invest in the future, diversity and oversight

OK, I cheated: this is really three things in one. But bear with me. The Biden administration originally pushed for language in the broadband provisions of the infrastructure law that would have put the thumb on the scale for symmetrical (same download and upload speeds) and scalable fiber to the home. In doing so, it sought not to repeat the mistakes of the 2010’s—investing in technologies that became obsolete almost from the day they were switched on.

The administration also sought to give a leg up to co-ops, municipal broadband networks, and other “non-traditional” broadband providers, recognizing, as I said previously, that their incentives are much different from the private sector. But thanks to intense lobbying by the cable industry, which relies on coaxial cable, a technology that isn’t capable of fast, symmetrical speeds, the law was watered down to be more “technology neutral”—meaning that those providers eligible for $42.5 billion from the NTIA’s Broadband Equity and Access (BEAD) Program need only provide 100 Mbps download and 20 Mbps upload speeds. Those speeds are often inadequate for many of today’s applications, especially if multiple users are using the connection at the same time. Also, the preference for non-traditional broadband providers was dropped.

Ultimately, state officials are responsible for who gets the BEAD money and whether everyone in their state will be served. As such, they have wide discretion to evaluate applicants for BEAD grants. So, a state could favor scalable, future-proof networks like fiber to the home. And while at least one state was told by NTIA that it could not limit its grants only to publicly owned networks, it can structure its grant program to favor a diversity of network providers, including those that are public, small, female, and minority owned.

Regardless of which broadband providers ultimately win these grants it is critical that both federal and state government officials conduct steady oversight to ensure that the networks actually get built and in a timely fashion. The 25-year history of federal broadband funding teaches us a valuable lesson of what not to do. Prior to Congress’ 2021 broadband investments, the last major round of government funding for broadband deployment was from an FCC-controlled fund called the Rural Digital Opportunity Fund, or RDOF.  Now nearly three years later, many of the grantees have not even started to build their networks, and some never will. In Southern Mississippi alone, 25,000 census blocks are subject to RDOF grants, but the grantees will eventually default unless the FCC gives them more money, which it is not inclined to do. This is a double whammy, because any area that is subject to a federal government grant, whether or not the network has been built, is not eligible for BEAD funding.

This history of “trust and kind of verify” has to end. Self-reporting is not enough. Many of the residents of areas that will receive BEAD grants have been waiting three decades for fast and reliable connectivity and in some cases any connectivity at all. They cannot wait any longer. Federal and state officials must go into the field, survey progress, and, if timelines are not met or missed without good reason, should require that the grant money be returned back to the states to grant to another provider who will build the promised networks.

2. Promote and defend locally owned public broadband networks

We’ve been waiting 30 years for the private sector to close the digital divide, and for reasons stated, that is not in their DNA. Many of these companies have not done so even after winning billions of dollars in federal and state grant money, and now in a change, cable companies will apply for BEAD funding as well. But nothing in that industry’s history gives me comfort that it will serve the most remote and poorest areas of the country with affordable broadband. That makes it imperative that policymakers promote community-owned networks and their goal of meeting the needs of every resident. In addition, they should ensure that there are no legal, economic or political barriers to building public networks.

While I would love to see Congress pass the bill introduced by Rep. Eshoo and Sen. Booker that would pre-empt the 16 state laws that restrict or prohibit community broadband networks, I think the better course is for states to repeal these laws, which entrench both broadband monopolies and the digital divide. This year, the Colorado state legislature lifted the state requirement that every community seeking to build their own network must pass a ballot initiative to approve it. Some 120 communities wasted time and money fighting the incumbent cable company’s efforts to block community builds, and the cable company lost every time. Ultimately it was the work of leaders from local and county government, the business community, anchor institutions like schools, universities and libraries, and ordinary citizens that moved the legislature and Governor Polis to act.

3. Provide more funding for the Affordable Connectivity Program and give it a forever home

My final suggestion concerns future funding for the Affordable Connectivity Program, or ACP, the $30 per month broadband subsidy that has been adopted by 21 million low-income households and has become a major source of revenue for large and small ISPs. Funding for the ACP runs out in early Spring 2024, and while there are vehicles for refunding it in this Congress, there seems not to be very much movement, especially now that the House of Representatives doesn’t have a Speaker, which is required for any legislation to pass.

Failure to provide more funding for the ACP would be an unmitigated disaster for everyone. Providers would need to start notifying ACP recipients in early January, and no business wants to tell its customers that it will be losing service. Customers would either be disconnected entirely or return to a state of Internet insecurity, where there are some months that they can afford having Internet service, and others when food, clothing or medical expenses take precedence. Even if funding for the ACP were to be restored at some point, the government would have lost the trust of millions of households, making the program far less successful than it is now.

Even if the ACP does get more money from Congress, it is unlikely to be enough for more than a year or two, so the ACP will need a “forever” home. Many believe that the best home is in the FCC’s Universal Service Fund, which provides support for connectivity to and inside K-12 schools and libraries, to rural health care facilities and to providers in places where the cost of providing broadband service is very high. It also supports a $9.25 per month Lifeline subsidy, which is used mostly for mobile phone service.

For the $30 subsidy to become part of the Universal Service Fund, the FCC has to move forward on expanding the base of companies that contribute. Right now, only landline and mobile phone and Voice over IP providers contribute to the fund, which means that fewer and fewer companies are contributing more and more.  At a minimum, the FCC should require broadband providers to contribute to the fund, but it should look at other options as well. The current system cannot be sustained, but contribution reform has long been a hot potato and one that the FCC, under the leadership of both parties, has been reticent to take on. I hope that with the future of the ACP on the line, either Congress, the FCC, or both will act to save the Universal Service Fund.

There has never been a more exciting time to ensure that every US household benefits from everything that broadband enables. Congress’ investment of tens of billions of dollars in broadband networks and digital equity make for the best chance in decades to achieve that goal. But it will take more than money to close the digital divide. Among other things, we will need dedicated federal, state and local policymakers, an engaged philanthropic sector, enlightened businesses and most of all, active civil society organizations and leaders that understand that to achieve social justice in this country, everyone must have a broadband connection. There’s a lot of work to do and it will take time, but the reward will be worth it. Thank you and have a wonderful evening.

Gigi Sohn is a Benton Senior Fellow and Public Advocate.

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

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Broadband Delivers Opportunities and Strengthens Communities