Jim is a partner at Keller & Heckman. He was founder of the US Broadband Coalition, a diverse group that fostered a broad national consensus on the need for a national broadband strategy and recommended the framework that was subsequently reflected in the Federal Communications Commission’s National Broadband Plan.
A consultant to Google’s Fiber for Communities project, he is also the co-founder and president of the Coalition for Local Internet Choice, an alliance that works to prevent or remove barriers to the ability of local governments to make the critical broadband infrastructure decisions that affect their communities.
Drew Clark: And we're live. Good afternoon. Welcome to broadband.money's Ask Me Anything. I am Drew Clark, and I am so excited to introduce our guest for today's Ask Me Anything, Jim Baller. Jim is... [chuckle] Jim is just the wizard, the most knowledgeable person on the particular topic we are going to discuss, which is public broadband and the importance of making sure that cities and localities have a fair shot as the Infrastructure Investment and Jobs Act rolls out. Jim, of course, deals with many telecom issues, and he is an attorney at Keller and Heckman, a partner at Keller and Heckman, and before that, had his own practice with Casey Stokes, and I've forgotten your partner Lide's first name.
Jim Baller: It's Sean Stokes and Casey Lide.
Drew: Oh, there we go. I got them confused. Forgive me, Sean and Casey, but it is so exciting to have Jim with us. He has many titles, we'll kind of review some of those titles, but really, the most important thing to know about Jim is that he knows his stuff, and we are going to have this opportunity to ask lots of questions about him because now is a particularly exciting time in the world of broadband because of IIJA, the Infrastructure Investment and Jobs Act. We have so many great questions to pose to Jim because you've been posing them on our Ask Me Anything page. So let me start off with one that has come up and maybe just kind of sets the stage for you to just give us a little clue for the parallels between the world of electricity and the world of broadband. How did you get involved in municipal broadband or broadband generally, Jim?
Jim: Well, in 1992, I was an energy attorney who had a little lull in my practice, so I tagged along to a conference given by the American Public Power Association for its members to acquaint them with what was then an amendment to the Cable Act of 1992. I had no idea why an electric utility would be interested in cable television work or opportunities, but as it turns out, many public power utilities were going to upgrade their infrastructure for power purposes, and this infrastructure with advanced communications capabilities could serve as infrastructure for the provision of cable service, telephone service, just about any kind of communication service. And at the end of the conference, the Public Communications Director for APPA passed around a sign-up sheet for members to chip in to hire Washington counsel to work with them in the wave of rulemakings that the FCC was going to launch to implement the new Cable Act amendments. My partner and I winked at each other and volunteered to do this pro bono as something of a on-the-job learning experience for me. Over the course of the next year, I worked closely with the visionaries within the public power communities on these Cable Act amendments, and we got them to look very good.
Jim: Chief among these visionaries was a Director of the Utility in Glasgow, Kentucky named Billy Ray, and he was just a fabulous communicator. We'd go over to the FCC and there'd be 20, 30 people in the room, and he would preach the gospel of publicly owned communications networks, and the rules were very invitingly written, but that brought me around to a theme that you mentioned at the beginning of your question, what's the comparison between this world of communications and the world of electricity? Well, at the end of that first year, I wrote a paper comparing this time in communications with the comparable period of time when the country was electrifying itself, and the parallels were just stunning. The private sector, private power industry, first provided their services to major opportunities, large cities, homes of the very wealthy and left much of the country in the dark, literally because electric street lighting was the first major use of electricity. And some 3000 communities stepped forward between the 1880s and the 1920s when about a 1000 systems changed hands, many distribution networks went to the private sector.
Jim: Now, these 2000 or so remain, and they provide not only excellent electric power to their communities, but they also have many members who are providing advanced communication services as well, using their infrastructure that could be wisely used for both electric and communications. They know customers of all kinds, they have access to infrastructure, polls, ducts, conduits, towers. They have experience with billing, customer service, technical support, they have an ethic of universal service. So they have a great opportunity to participate. At the same time, even public power entities and communities were not able to serve all areas economically, and in the 1930s, as part of the new deal, the Rural Electric Administration came into being and supported the development of cooperatives who stepped up and stepped in a major way to ensure that we had electricity, even in the hardest to reach areas. And to see these those parallels, the same thing is happening today, co-ops are beginning to step forward, public power communities have been doing it for the last 25 years or so. So the history really is repeating itself.
Drew: Well, you read my mind Jim, about where I wanted to go next, which was co-ops. Because we hear a lot about co-ops and we've got a lot of electric co-ops particularly that are quite engaged in the broadband.money community. And we were obviously wanting everyone who's interested in learning more about the IIJA and its implementation to be part of broadband.money. And what is similar and what is different, if anything, between a city-run municipality or electric power... Public power and a co-op? In some legal sense, they are different; one's a public entity, and a co-op is, by my understanding, almost always a private non-profit entity. But they have many similarities. So could you just speak about similarities and differences there?
Jim: Sure. First of all, they're both owned by the people who get the service. They're consumer-owned. And that gives them a priority to serve the people who own them, and that has major ramifications. They can look at projects, not in terms of short-term goals, but in terms of long-term goals. They want those networks to be as accommodating to service providers as possible, and that's true of both. There are differences, as you know Drew, between the legal infrastructure that these operate under. The fact that the cooperatives are privately owned rather than publicly owned, makes them not amenable to some of the restrictions that apply to public projects in some states. By the same token, there are requirements that apply to cooperatives that are directed at cooperatives, and we're seeing states lifting some of those restrictions, now recognizing what an important role cooperatives can play in getting broadband to areas that are hard to reach. In that sense, they're also comparable. Public power serves communities that were left out by the private sector. That's true of cooperatives, but cooperatives tend to serve areas that are not even possible to do feasibly by municipal electric facilities.
Drew: We had on one of our previous Ask Me Anythings, Darren Farnan, the Chief Operating Officer of United Fiber, and they're a electric co-op that now has three times as many broadband subscribers as in their electric co-op. What's your sense of electric co-ops' appetite for getting involved in broadband?
Jim: Well, electric co-ops and the rest of the country saw as a result of what COVID did to our country, the absolute necessity of having affordable access to robust broadband available. And like the rest of the country, like communities across the country, they recognized the need of their communities and are exploring ways to take the step. And cooperatives are very careful. They wanna make sure that they're doing well for their existing members, and that they're not taking risks that will adversely affect their ability to serve their electric community. But at the same time, they... At the same time, they recognize that if they don't step forward and provide services to their communities, it may be a long time before alternatives emerge. So there's a tremendous amount of interest across the country. Let me go on and just expand this.
Drew: Please do.
Jim: This is not just public power communities or cooperative communities, but communities general across the country. Like electricity, it has become obvious to many people that having access to advanced communications networks at affordable rates and universally creates a platform and an opportunity to experience simultaneous progress in everything that matters to a community. Economic development, educational opportunity, public safety, transportation, environmental protection, entertainment, government service, to go on and on. And in each and every... In each and every one of these areas... Can you hear me now? Okay.
Jim: In each and every one of these areas, progress is being made. And if you have the network to support it, and networks are critical to everything, you can experience that progress in every one of these fields. If you don't have access to advanced communications capabilities, you not only miss out on being able to participate reliably in Zoom calls like this, but you fall behind in every one of those areas. So what we're seeing is communities across the country eagerly exploring opportunities with willing incumbents, with potential new entrance, with networks of their own, if they're capable of it, or see the necessity of it, of creating new kinds of engagements, regional networks, public-private partnerships of remarkable kinds. All of these things are going on now. And the stimulus funding that's available will be like a lighter fluid on embers that are already glowing across the country.
Drew: You're just naturally leading into where I wanna go next, but you're... I don't wanna go too quickly in to public-private partnerships because I wanna linger on this point about co-ops a little bit more.
Drew: What are the recent rules that have been eased in different states and will we see more of those? What do those enable electric co-ops to do now that they couldn't before?
Jim: Well, they can provide services. In any many cases, there are or there have been model laws defining how electric membership entities can get into business and can operate. In a number of states, there were interpretations that if something was not explicitly designated as an allowable service for a cooperative, they couldn't do it. One state, for example, held that a municipal electric utility could not provide propane services because that wasn't expressly called out in the state's particular scheme of authorization.
Jim: So what we're seeing in some states now are explicit provisions that tell cooperatives that they can enter into the communications field. In some cases, the laws spell out terms and conditions, for example, that a cooperative needs to do this through a separate affiliate. But in general, what these laws are doing is opening up the field for cooperatives to enter. Some states are also dealing with easements, which has been a problem as well, where a private owner of land over which a network is extended, has given certain rights called easements to the entities operating in those areas, and broadband or fiber service or communication services may not have been contemplated in the original easement. And the question becomes, can those easements be used for communications purposes as well? That's a state issue. Different answers, different places in some legislatures, while in the course of authorizing cooperatives to move forward are also dealing with easement issues.
Drew: So what I'm hearing in that answer is, they're very varied, but there have been good progress and changes. And I guess just kind of closing on this, as we move over to partnerships, there hasn't been a lot of regression in terms of the number of states that have restrictions on municipal broadband, correct, Jim? But there hasn't necessarily been any dramatic change either. Do you wanna just kind of speak to this as we close out this question of co-ops and public power and restrictions and so forth?
S3: Okay. If what you mean is by hasn't been regression, that there have been no new barriers...
Drew: That's what I mean.
Jim: The answer is, it's been slightly in the opposite direction, in terms of straightforward prohibitions, either direct or effective prohibitions. And as a sign of the progress, last year, for example, a heavily Republican state of Arkansas unanimously, in both the House and Senate, voted to broadly expand authority of municipal networks, a very gratifying step by Arkansas. State of Washington removed some restrictions on Public Utility District and authorized smaller cities to move forward with communications projects.
Jim: So in that sense, Drew, there has not been a regression, to use your word. The real challenge nowadays is to ensure that the money that is going to be made available under federal funding programs, including the IIJA, is not withheld from public entities or cooperatives or public private partnerships. That's a different kind of restriction, but it's one that we need to be very cautious about and act vigorously to try to oppose.
Drew: Well, boy, we've just started and... Just getting started and I see, we're about a third of the way through. Let me just kind of categorize. I'd like to cover three big topics in the next 40 minutes, Jim. One is public-private partnerships. And this is so, so vital and central, and you've teed up this a little bit a second, and this kind of overhangs the entire discussion, is the Infrastructure Investment and Jobs Act. But not just that because there's also the American Recovery Plan funds, there's also the treasury's Capital Projects Fund, as well as other funds for broadband, and broadband.money's interested in all of these, as are of course, many people. And then of course, federalism and some of the ways that overhangs a lot of these issues that deal with municipalities. But let's talk about public-private partnerships. And you teed this up so well in talking to co-ops and how they might explore interactions with other players than themselves. Let me just ask this way Jim, obviously, you're a big proponent of public entities being involved in broadband, but you don't have any objection to private entities being involved in broadband, do you?
Jim: Well, let me clarify. I'm often said to be an advocate of municipal networks. To be more precise, I am a vigorous advocate of local choice. If a local government well-informed decides to provide service itself, I'm all for it and will gladly help. If they decide to work with a private entity, an incumbent even, and that's the choice that makes sense to them, I'm all for that as well. So I absolutely am not anti-private sector, except when some members of the private sector, in my view, misstate the facts about the reality of public participation in projects. But to me, partnerships is a bigger term than simply a couple of entities working together on a project. It's a much larger concept of people working cooperatively to get goals achieved. And we now have recognition of the importance of getting robust broadband everywhere across this country, we can't do that without partnerships of all kinds, partnerships in the educational community and the industrial community, and all across the board, finding ways to work together to take advantage of the multiple opportunities that advanced networks provide.
Jim: And yes, while we can focus and will focus, I'm sure on partnerships surrounding particular projects when it comes to who owns the network and who operates the network and who provide services on the network, I'm talking about a much bigger kind of partnership, and frankly, I hope that success in partnerships of that kind will lead to success in tearing down some of the barriers between us as a country and help people focus on ways to work together for common goals that everyone will benefit from.
Drew: Yeah, well said. Here's... Let me kind of drill into this specific question here on public-private partnerships. Why are they so significant? What is better or what can be better about a PPP than a typical private telecommunications deployment? Again, granted you're not saying that that's a bad choice, but what can be better about a PPP than a purely private deployment, or on the other hand, a purely municipal-run broadband deployment? So could you speak to that combining of public and private in a PPP?
Jim: Okay, first of all, communications networks are most successful when many users are available, and the kinds of networks we're talking about today are not just a single service, cable systems or phone systems, they're multi-user facilities that support everything. And to the extent that you have partnerships bringing in sectors of all of these communities within the community to take advantage of the resources that they can all bring to bear, you broaden... First of all, you broaden the financial resources that it takes to pay for a network, and you improve dramatically the sustainability of such networks. Second, the private sector has certain advantages of experience in providing communication services. I'm talking here about ISPs and others that are already communication service providers. Some communities can do that themselves, but most can't, so they're gonna need support from the private sector in order to operate networks in a successful way. By the same token, the private sector can benefit from the skills and responsibilities that local entities can undertake such as construction, management of public rights of way and that sort of thing.
Jim: Another benefit is that... We call this asymmetric goals. What that means is that a local government has long-term goals it wants its community to benefit in the multiple ways that a network can provide. It does not need to turn a profit short-term. A private entity has to meet certain targets of profitability. So a well-designed system can enable both sides to achieve their goals, even though their goals are only complementary and not identical with one another.
Jim: We've talked about barriers in some places. In some places it's possible through partnerships to provide service that would not be available or would not be possible today by the public entity standing alone. Those are some of the major benefits. There are also disadvantages... Other... They tend to be more complicated than a do-it-yourself project, if you are in fact able to handle a do-it-yourself project. And sometimes, local government participants change after elections. Sometimes private entities want to sell their stakes in projects. Change does happen, and it's a bit more complicated if you have a public-private partnership than if you're doing it alone as a private entity or doing it alone as a public entity, but there are ways to mitigate these risks.
Drew: Well, and one point I often make in talking about this, Jim, is that telecommunications is, in one way, inherently public-private because of the rights of way that the government is by necessity the steward of, right? And so the local government can either give away its birthright to any old incumbent that comes along without really getting a benefit. Or it can say, "No, this is our right of way. We'll work with you in a great way to enable broadband." And so it's going to have a role, and then the private sector tends to have the ability to move faster. But again, you point out that if you're a city incapable of doing this, that may be a fast way to move forward too. So it's kind of taking advantage of different components, wouldn't you agree, Jim?
Jim: I would not only agree, but I would add that in many cases, in almost all cases, the right selection among the variables that go into what ultimately becomes a good public-private partnership will depend heavily on local conditions, local assets, local expertise, local risk sensitivity, local goals, other priorities. Once you sort themselves... You sort out these things, you can then plot a path to enable both the public and the private entities to achieve what works best under that set of variables, yes. But we're seeing these things accelerating to an amazing extent today because of the opportunity being there and the need to move quickly.
Drew: Well, and you're singing our tune at broadband.money, local conditions, local assets, local expertise, local risk, that is what we are all about, is making sure people understand local really has something to add to this equation. We've got a question from Robert Tse, I hope I'm pronouncing that right, the Senior Policy Advisor for Telecommunications at USDA's Rural Utilities Service. He asks, "Are water or irrigation districts in the west candidates to deliver broadband similar to what electric cooperatives in the east are doing? Similarities are, one delivers water, the other electricity. Both have the same customers and linear rights of way and utility, like infrastructure." What's your thought on water irrigation districts, Jim?
Jim: I'd say yes, in principle, and then say, look at the facts of the particular cases. The caller who posed the question is absolutely right, there are irrigation districts, there are public utility districts, there are others providing communications infrastructure or facilities of various kinds. Some don't wanna be involved in that sort of thing and others do. So from my perspective, what we need is an open door to the possibility of it, and then let the people involved figure out how they can work successfully toward achieving that goal.
Drew: Well, let's move right to...
Jim: I just...
Drew: Go ahead.
Jim: If I might just add, Washington State, I mentioned that a few moments ago, but there's an example of where county-level public utility districts, PUDs, over the years, were allowed to provide only wholesale telecommunications service. And they've done that very well. But now, they also have the opportunity to provide a retail service, which is sorely needed there. The same is true of other kinds of utilities and even seaports and other kinds of areas like that.
Drew: Yeah. Let's move in to the Infrastructure Investment and Jobs Act, as well as other federal and state programs to promote broadband, to stimulate broadband, to fund broadband, and in particular, how that will accelerate or could accelerate public-private partnership models. In particular, Jays Wilson asks, "What underappreciated PPP models do you believe will become popular choices for communities in the IIJA era?"
Jim: I think there will be many different kinds of public-private models. There are nuances and nuances upon models, but if I had to pick one of them that I think will be very popular, I'm not saying necessarily more popular than others, it will be the public sector owning the infrastructure and either developing it themselves or working with a private entity to design, build, operate, maintain and provide service over it, possibly also finance. But providing resources can make the difference in making projects feasible that would not otherwise have been, and empowering the local government to provide the resources and maintain a significant role in the management of the endeavor will be very important. The private sector, there will be matching requirements, 25%, and that has to come from somewhere. In some cases, that will come from the private entities involved, in some cases, it could come from other resources. But these partnerships are prime opportunities for... These are prime opportunities for funding under the IIJA, and the IIJA expressly calls out partnerships as being a candidate for funding.
Drew: So Jim, we won't talk a great length in this conversation about the prior round of broadband funding that the Federal Government engaged in in 2009, but I do wanna ask that to set up the question of, how would you compare the energy we are seeing right now in regard to the preparation, anticipation for IIJA, the rules are due out by May 16th, 10 days from now, versus the feeling that surrounded the ARRA in 2009? In other words, what is likely to be different, better and bigger about IIJA than about the ARRA?
Jim: Well, first of all, let me say that to one who was part of the community of people who are really interested in the B top and their programs a decade ago, the excitement was just as palpable as it is today. To us, 6.2 billion dollars was a treasure beyond anything that we had hoped for before the enactment of the ARRA. So the energy level is particularly high among those who've had a significant role to play in that process. What's really different now is COVID, and COVID has convinced the whole nation, it has moved the nation ahead perhaps 10 years beyond what it might have taken for realization of the significance of robust broadband to sink in. So now, it has in fact sunk in at congress, it is sinking in at the states in a whole new way than existed before, and it has captured the fancy of communities across the country. So the dollars involved are much bigger in addition to the IIJA and the 350 billion that were made available under the ARPA. The NTIA has identified some 80 programs across 14 departments and agencies that can be used to support broadband for those who know how to piece together projects.
Jim: So there's no reason why a community can't focus on communication services, and at the same time, address the needs of the sewer system, and the water system, and everything else in the community that needs robust communication services.
Drew: That's great. It's great because you have captured that the wonks were excited then like they are now, but this has gone way beyond the wonks, that's what I've heard you just say.
Jim: Couldn't have said it better.
Drew: That's very exciting, but there are also still worries, for example, Sarah Listerlind asks, "How many of the individuals in the community here on broadband.money are worried about the challenge process when they apply to cover areas with IIJA money?" In other words, they're worried about incumbents with deep pockets endlessly challenging their applications until the smaller ISP money runs out. Is there a mechanism in the IIJA that allows the NTIA to limit such challenges?
Jim: Well, that's a complicated question, or rather, the answer is complicated. And yes, we need to be worried about the challenge process. But there are reasons to believe that the challenge process will not go, as Sarah's question implies. First of all, the challenge process will be to locations that are identified through the FCCs process of building a fabric that identifies what's available on a location-by-location basis across the country. And the test is whether broadband is being provided or can be provided within 10 business days in a new area that has not yet been served by an incumbent, and that can be done without extension fees and without delays.
Jim: So if the reports of the private sector are geared toward that level of specificity, and there are ways to test whether services are being provided and what the bandwidth of those services are on a location-by-location basis. And in addition to that, the test is not just a level of bandwidth, but also other considerations, like latency and jitter. And the NTIA is very well aware of that. If you look at some of the documents that it has put together for its listening tours and listening sessions, you see them saying that it's not just level of service, it's also reliable service. And reliable depends on the kinds of definitions that NTIA and the FCC will develop together to ensure that you have an appropriate measure of speeds, but also of latency, jitter and other kinds of considerations that go into a meaningful broadband experience. And we'll look eagerly for what NTIA publishes. Now, I've heard it's the 13th now. True. We were expecting the 16th, but now I've heard 13th.
Drew: I said it was required by the 16th, but we have also been hearing the same. So what a great surprise it will be for the NTIA to come out ahead of their deadline with... A week from today.
Jim: Well, that'll give 'em a weekend, and they're gonna be very busy beavers over the next few years. So if they can get a weekend by having the publication on Friday rather than the following Monday, good for them.
Drew: We have a question from Dave Taut who has raised this latency and jitter issue before. "My concern is always that end users get networks with the lowest possible latency under load as more bandwidth alone does not lead to better quality of experience for video conferencing or gaming applications. What is being done to address this problem, as well as the problem of the IPv6 roll-out?" Do you have any thoughts on those two questions, Jim?
Jim: I don't have answers yet, but I can say that I know that NTIA is aware of these issues. And for evidence, I would point to what I just pointed to, their paperwork in their listening tours in which they give guidance as to what they're thinking about, and they are thinking about these things.
Drew: Well, again, IIJA overhangs all of our discussion, and I wanna move now to kind of, let's call it our final topic of federalism, but it will come back and will... IIJA will still be a part of this. But before I do that, is there any advice you would like to offer the NTIA as they undertake their last seven days before the NOFO?
Jim: I trust NTIA to do the very best job that they can under the circumstances. I know that people are giving them advice in all directions, including the organizations and the communities that I hang out with. And so we know that NTIA has the questions before it, and by this time, I think they've got a pretty good idea of where they want to head.
Drew: Okay. So let's raise this topic of federalism broadly. And I'm gonna allow you to define federalism and the impact it has had on telecom law in general and municipal broadband in particular.
Jim: Well, federalism is the general concept that ours is a nation in which states were the original point of authority. They ceded part of their authority to the Federal Government. And since then, there has been debate back and forth about what's federal authority, what's state authority, and what happens in those areas where it's difficult to say, "This is purely interstate, and this is purely intra-state." So the way this has worked out, in particular with respect to public broadband initiatives, is that the Federal Communications Law is very open to participants of all kinds, but it does not explicitly provide local governments authority to provide communication service. That authority must come from states, and states can do that explicitly or through home rule or otherwise. Some states have enacted barriers to public broadband initiatives of various kinds. And over the course of the last couple of decades, there's been tension between whether the Federal Communications Commission has authority to preempt state laws that restrict or limit public power or public broadband initiatives. And we've been involved in this struggle at the federal level, in the states, before the courts, all that time.
Jim: And the first case that went all the way to the Supreme Court on this issue, we convinced the Eighth Circuit that when Congress adopts a law saying that states can't adopt measures that prohibit any entity from providing any communication service, that that's plain and simple and applies to public entities, as well as private entities. The FCC thought otherwise, and the Supreme Court agrees that it could not be sure that any entity included any public entity because Congress hadn't said so in words of one syllable, therefore, out of respect for state authority, it had to rule against the Missouri entities that were the lead in that case.
Drew: That's the Nixon.
Drew: Was it Springfield? Was that the...
Jim: It was Missouri Municipal League was the party in interest. Springfield had a significant role in that. A few years later, the cities of Chattanooga, Tennessee, and Wilson, North Carolina, challenged their state laws that also had restrictions. And the FCC looked at the particular provisions of the Communications Act at issue there, and decided that, yes, Tennessee's and North Carolina's laws were restrictive and anti-competitive and contrary to the provisions of law at issue. And this time, the Sixth Circuit overturned the FCCs decisions, not because it was incorrect about the adverse effect of these laws, but because of the authority issue. It felt again that there was not clear enough signal from Congress to enable the court to be confident that Congress intended this result.
Jim: Even so, the decision, in my opinion, of Tom Wheeler to do the preemption was very important, and it has implications even for today. It was a fair reading, I believe, of the act to warrant preemption, but it built a broad public record that looked at each of the arguments on both sides of the issue, the claims that municipalities always failed, that they have unfair advantages, this, that, and the other. And it also looked at how the laws actually work in practice. In particular, it went through the North Carolina law, which is justified as being necessary to create a level playing field, and found, on point by point by point, that these points of this law contribute to an anti-competitive law that applies asymmetrically to public and private entities, and discourages investment, and ultimately, is anti-competitive and contrary to the Act.
Jim: Now, the significance of that today is that in the IIJA, there's a provision that says that states who are recipients of IIJA funds can't prohibit public entities, public-private partnerships, cooperatives, non-profits, private entities from being eligible for funds. Now, does that have to be an explicit prohibition or can it be the kind of law, like North Carolina's, that is prohibitive in effect, if not literally? We have the FCC president looking at a law that says, "These factors taken together are prohibitive." That stance, that... The Sixth Circuit did not challenge the FCCs determination about that, and that was based on a very broad and public record. So we'll see how NTIA handles the provision in the IIJA that deals with this issue, and how it wants to react to it. The one difference between this provision in the IIJA and the other provisions that were tested is that this time, Congress used the magic words, "Public entities and public-private partnerships and cooperatives," and so there can't be any doubt as to the scope of what Congress intended as to who should be eligible.
Drew: Well, and that is crucial, just that history really does show that while the ground may have been bad ground back to the Nixon v Missouri decision, you're saying that Tom Wheeler's decision in 2014 to attempt to preempt them was a good thing because it goes to the fact that there is now a record and there is now a substantial... And now, there's specific language in IIJA that makes it clear that states cannot prejudice a public entity or a co-op or a public-private partnership, just like you've stated here, right, Jim?
Jim: You got it.
Drew: [chuckle] Well, I want to pose a question that Benjamin Kahn, a reporter at Broadband Breakfast, and he was with me at the Broadband Communities summit, he says, "During Broadband Communities, open-access networks were a heated topic." Of course, you were there with us, we had many chances to interact. Jim, the world wants to know, what is your view on open-access networks?
Jim: I think it's a wonderful concept, if it can work. In some cases, it can, in other cases, it's challenging, and you have to look at the circumstances case-by-case. There are some open-access providers who've had long experience with it, have learned how to make it work. There are others who appreciate how good it would be if open-access were possible, but may not be able to pull it off. Again, as we've stressed over and over again, you have to look at the facts in front of you and learn from projects that have tried and succeeded and tried and struggled.
Drew: With the greater prominence of public-private partnerships, I would perhaps argue, let me just push back a little bit, Jim, that open-access is really very well-suited to the public-private partnership because what it... It doesn't need to be this. For example, there're some open-access networks like SiFi Networks that are purely private in the sense it's owned, operated and services by private. But UTOPIA Fiber, on the other hand, is, of course, a public entity that is owning and operating the network with private companies. So when we're talking about public-private partnerships, don't you think that gives some momentum to open-access networks that maybe wasn't there before widespread discussion use of public-private partnerships in the broadband space?
Jim: Well, I'm not saying that open-access can't work. And with funding available, that's a whole new ball game. But when open-access networks had to pay for themselves out of user revenues, the network operator had to pay for the network, the private entities that used the service to provide retail service and other services had to make enough money at the retail level, not only to pay for their own operations, maintenance, marketing and other costs, but to be able to pay the network operator enough to enable the network operator to support the financing and funding of the network. And in an environment where there were no opportunities for outside funds to help make these projects feasible, they worked in some instances, and they were too challenging and ahead of the time for others. Here's another point that might help bank this for you. Do you remember what the definition of broadband was for the purposes of the BTOP program?
Drew: Was it four one or... I'm not sure, Jim.
Jim: It was 768 kilobits down and 200 up.
Drew: Okay. [chuckle]
Jim: What that tells you also, is that the public's perception of what broadband was was a far cry from what it is today. And today, the widespread interest in broadband and in obtaining access home-by-home, location-by-location of robust broadband, makes open-access potentially more feasible. It contributes to the potential feasibility. Still and all, I come back to the point that it all depends on the facts in front of you. And I'm hoping that there'll be more and more examples of how open-access can be made to work because ideally, it has a heck of a lot going for it. But it has to be penciled out, and from then, it has to work in practice.
Drew: Scott Perry added a questions a few minutes ago, noting, "Washington state has required certain public utility districts to provide Fiber in those counties where they have excess funds from selling power from Hydro." That's interesting. I don't know if there's a question there, but...
Jim: Well, I don't know what the answer would be to the question. [chuckle]
Drew: I wanna kind of round out our discussion with a news announcement that came from Broadband Communities. So we reported about this on broadband.money. We have covered it in Broadband Breakfast, the publication I edit. Could you speak about the recently announced American Association of Public Broadband? Is this a ratification of what you have been advocating for decades? And I also really just need to mention the Institute for Local Self-Reliance and its Municipal Networks project. We certainly hope we'll get Christopher Mitchell on this Ask Me Anything program. They have done an incredible job of cataloging the many, many successes out there in municipal broadband. But this new organization says that they want to lobby on public broadband. Could you speak to what it's about from your perspective, Jim?
Jim: Well, there's a great need for public entities to have a voice in what's going to happen in the next few years as the states implement broadband programs. Just imagine all this money going to 50 states and territories, each of which has to develop its own plan. And in many cases, the private sector will be there in full force because they have a stake in it. So will the traditional organizations that have supported local governments over the years. Natella and NLC and League of Mayors and Click and others, but there's great need for additional resources for collaboration and communication. Let me give you an example, going back to 2005. In 2005, the year before ended with our loss in the Missouri case, and then Pennsylvania enacting an ugly barrier to entry. We anticipated that in 2005 there would be a wave of new efforts across the country to adopt new state barriers. That turned out to be correct. There were 13 bills that year, and those bills caused something really important to happen. They caused all the organizations to come together, and even more important, they caused the private sector that had an interest in working with public entities to step forward to say, "Enough is enough. This is not a matter of public versus private, this is a matter of our nation benefiting from working together, and suffering if we are deprived of the opportunity to work collectively toward these ends."
Jim: And we were successful in defeating 12... Or watering down 12 of the 13 proposed barriers that year. Action then moved to the Federal Congress, and that group of organizations that had coalesced were successful in 2006 in getting a pro-broadband bill all the way through the House and all the way through the Senate Commerce Committee, until Congress changed. And now, we've never been able to build that kind of momentum before. But all this is in the way of saying, "Welcome, American Association of Public Broadband. We need your help, we need your resources, and we need to pull all of our voices on the side of local choice together, and we need to make sure that as the states consider plans to advance the interests of communities across the country, that they understand the public perspective as Congress in the IIJA ordered them to do."
Drew: Well, you've teed up the very, very last question that I have, which is... The question I was gonna ask is, "Is broadband policy truly bipartisan?" And now I get to ask, who was the sponsor of that 2006 bill that you spoke about, that got all the way through one chamber of Congress?
Jim: Well, there were several on the Senate side and several on the House side. The leading senators were Frank Lautenberg and John McCain, on the Senate side. And on the House side, it was Rick Boucher and Fred Upton. Rick Boucher of Virginia, Fred Upton of Michigan.
Drew: And the point there is John McCain, the Republican Party nominee two years later, was the very sponsor of this bill, just like Fred Upton, a very conservative Republican from Michigan, was the co-sponsor. So the question is, is broadband truly bipartisan? And I think the answer is a resounding yes. Is there any examples that you would provide kind of as a close-out examples of making sure we keep broadband policy and better broadband a bipartisan effort, Jim?
Jim: I'm going back to Arkansas with that one. The initiative there began not last year when the law was finally passed in its present form, but the prior year in which the law made a step forward. And the initiative behind that was the Republican Women's Caucus. And the next year, the mostly-Republican legislature voted unanimously to extend public broadband options of municipalities. And in the Broadband Plan that Arkansas has just produced, public entities have a significant opportunity to participate in the State Broadband Plan. So I'm saying that it depends where you are at the local level. It is certainly more likely to be non-partisan, than it is in some states, than it is in Congress at times. But it should be non-partisan, it should be bipartisan because we all have a stake in the success of it. Let's talk about how to fine-tune our models and our working relationships, but not talk about barriers that derail the opportunity in the first instance.
Drew: Well, our time has run its course, but it's been a remarkable opportunity to get your thoughts and to share the thoughts that many have asked. Jim, thank you for being with us in this Ask Me Anything. On behalf of broadband.money and our guest for this hour, Jim Baller, I'm Drew Clark, and we'll see you at the next Ask Me Anything, next week at 2:30 PM Eastern Time.
Jim: Thanks very much for the opportunity, Drew, and keep doing your good work.
Drew: Thank you. You too, Jim. And we'll see you next week. Take care.