A U.S. Broadband Build-Out Should Require Open Access

This blog post was originally published via Net Politics on Tuesday, May 4, 2021.

In the coming infrastructure bill, broadband is likely to get a big boost. The Biden administration has proposed $100 billion to build out the nation’s digital infrastructure. Republicans, in their infrastructure plan, have included $65 billion. But whether the right number is $100 billion, $65 billion, or somewhere in between, what matters more than the actual dollar figure is how it is spent.

Even if you have high speed fiber-based internet access, unless you live in a handful of communities you likely only have a single provider that has a monopoly on that service for you. With that monopoly comes everything that economists expect including arbitrary pricing, data caps, throttling, and legendarily poor customer service.

Except that is if you live somewhere like Tremonton, Utah. In Tremonton, Utopia Fiber has built out an “open access” network. What that means is that Utopia lays the fiber and manages infrastructure, selling access to competing Internet Service Providers (ISPs). Consumers then can choose the plan they want from the thirteen ISPs offering service on their network, making their choice based on speed, reliability, customer service, and other factors.

As Congress gets ready to spend billions to build out broadband infrastructure, the goal of that spending should be not only to deploy fiber-based infrastructure to every home and business in the United States but also to prevent the formation of new local monopolies at taxpayer expense. In my latest Cyber Brief, I argue for making open access a precondition for any federal spending.

Any legislative language on the broadband build out that makes it into the final spending package is likely to be based on the Accessible, Affordable Internet Act [PDF], sponsored by Representative James Clyburn (D-SC) and Senator Amy Klobuchar (D-MN). The act, like President Biden’s plan, encourages open access models but does not make open access a pre-condition for investment. However, it should.

Creating competition for utilities used to be something that as recently as the 1990s received bipartisan support. The Energy Policy Act [PDF] of 1992 required electric utilities to open their distribution networks to third party power companies, allowing individuals to choose a cheaper provider or one that provides wind or solar energy. The Telecommunications Act of 1996 [PDF] mandated an open access policy for copper wire phone lines, allowing for the growth of a competitive market for Digital Subscriber Lines (DSL).

When it came to broadband deployment, Congress and the Federal Communications Commission went with the thinking that the carriers would only invest in the build-out of broadband if they were guaranteed a monopoly on servicing the infrastructure they built. That monopoly, however, did not turn out to provide sufficient incentive to expand fiber internet beyond major metropolitan areas.

In seeking to correct this policy failure (and catch up to China [PDF] and other countries on fiber deployment), Congress and the Biden administration should recognize that there is no reason why recipients of federal funding to build out fiber infrastructure should also be granted a monopoly on providing service over that infrastructure.

Requiring any recipient of funding for the build-out of fiber networks to offer open access to competing ISPs will do far more to ensure quality service and fair prices than any attempt to regulate the broadband industry after the fact. Indeed, as others have argued, competition is the most straightforward solution to maintaining net neutrality. If your internet provider throttles Netflix on Friday nights or decides to give the content its parent company owns preferential treatment on the network, today there is little you can do to protest. Under a policy of open access, you can vote with your dollars and switch to another provider that does not have these policies.

With billions of federal dollars set to be spent on broadband deployment, Congress needs to ensure that these dollars don’t go to replicate the lack of competition and poor customer service that plague most consumers who have access to fiber-based internet today.