The U.S. Senate is on the cusp of approving an infrastructure package, which passed a critical first vote last night by 67-32. Negotiations on the final bill are ongoing, but late yesterday NBC News had the draft broadband provisions. There is a lot to like in it, some of which will depend on decisions by the state governments and the Federal Communications Commission (FCC), and some drawbacks. Assuming that what was released makes it into the final bill, here is what to expect.

Not Enough Money to Close the Digital Divide Across the U.S.

We have long advocated for, backed up by evidence, a plan that would connect every American to fiber. It is a vital part of any nationwide communications policy that intends to actually function in the 21st century. The future is clearly heading towards more symmetrical uses, that will require more bandwidth at very low latency. Falling short of that will inevitably create a new digital divide, this one between those with 21st-century access and those without. Fiber-connected people will head towards the cheaper symmetrical multi-gigabit era while others are stuck on capacity-constrained expensive legacy wires. This “speed chasm” will create a divide between those who can participate in an increasingly remote, telecommuting world and those who cannot.

Most estimates put the price tag of universal fiber at $80 to $100 billion, but this bipartisan package proposes only $40 billion in total for construction. It’s pretty obvious that this shortfall will prevent many areas from the funding they need to deliver fiber--or really any broadband access—to the millions of Americans in need of access.

While Congress can rectify this shortfall in the future with additional infusions of funding, as well as a stronger emphasis on treating fiber as an infrastructure, versus purely a broadband service. But it should be clear what it means to not do so now. Some states will do very well under this proposal, by having the federal efforts complement already existing state efforts. For example, California already has a state universal fiber effort underway that recruits all local actors to work with the state to deliver fiber infrastructure. More federal dollars will just augment an already very good thing there. But other states may, unfortunately, get duped into building out or subsidizing slow networks that will inevitably need to be replaced. That will cost the state and federal government more money in the end. This isn’t fated to happen, but it’s a risk invited by the legislation’s adoption of 100/20 Mbps as the build-out metric instead of 100/100 Mbps.

Protecting the Cable Monopolies Instead of Giving Us What We Need

Lobbyists for the slow legacy internet access companies descended on Capitol Hill with a range of arguments trying to dissuade Congress from creating competition in neglected markets, which in turn would force existing carriers to provide better service. Everyone will eventually need access to fiber-optic infrastructure. Our technical analysis has made clear that fiber is the superior medium for 21st-century broadband, which is why government infrastructure policy needs to be oriented around pushing fiber into every community.

Even major wireless industry players agree now that fiber is “inextricably linked” with future high-speed wireless connectivity. But all of this was very inconvenient for existing legacy monopolies. Most noteworthy, cable stood to lose if too many people got very fast cheaper internet from someone else. The legislation includes provisions to effectively insulate the underinvested cable monopoly markets from federal dollars. That, arguably, is the worst outcome here.

By defining internet access as the ability to get 100/20 Mbps service, the draft language allows cable monopolies to argue that anyone with access to ancient, insufficient internet access does not need federal money to build new infrastructure. That means communities with nearly decade-old DOCSIS 3.0 broadband are shielded from federal dollars from being used to build fiber. Copper-DSL-only areas, and areas entirely without broadband, will likely take the lion’s share of the $40 billion made available. In addition to rural areas, pockets of urban markets where people are still lacking broadband will qualify. This will lead to an absurd result: people on inferior, too-expensive cable services will be seen as equally served as their neighbors who will get federally funded fiber.

The Future-Proofing Criteria Is Essential to Help Avoid Wasting These Investments

The proposal establishes a priority (not a mandate) for future-proof infrastructure, which is essential to avoid the 100/20 Mbps speed, or something close to it, from becoming standard. Legacy industry was fond of telling Congress to be “technology neutral” in its policy, when really they were asking Congress to create a program that subsidized their obsolete connections by lowering the bar. The future-proofing provision helps avoid that outcome though by establishing federal priorities of the broadband projects being funded (see below).

This is where things will be challenging in the years to come. The Biden Administration has been crystal clear about the link between fiber infrastructure and future-proofing per its Treasury guidelines that implemented the broadband provisions of the American Rescue Plan. But the bipartisan bill gives a lot of discretion to the states to distribute the funds. Without a doubt, the same lobby that descended on Congress to argue against 100/100 Mbps will attempt to grift state governments into believing any infrastructure will deliver these goals. That is just not true as a matter of physics.  States that understand this will push fiber, and are given the flexibility to do so here.

Digital Discrimination Rules

Under the section titled “digital discrimination,” the bill requires the FCC to establish what it means to have equal access to broadband and, more importantly, what a carrier would have to do to violate such a requirement. This provision carries major possibilities but is dependent on who the president nominates to run the FCC, as it will be their responsibility for setting the rules. If done right, it can set the stage for addressing digital redlining in certain urban communities, and push fiber on equitable terms.

If they get the right regulation, the most direct beneficiaries are likely to be city broadband users who have been left behind. Even in big cities with profitable markets, people have been left behind. For example, San Francisco has approximately 100,000 people per the city’s own internal analysis that lack broadband (most of whom are low-income and predominantly people of color), yet are surrounded by Comcast and AT&T fiber deployments in that same city. The same is true in various other major cities per numerous studies, which is why EFF has called for a ban on digital redlining both at the state and federal levels.