This year’s passage of the Infrastructure Investment and Jobs Act (IIJA)—also known as the bipartisan infrastructure package—delivered on a goal EFF has sought for years. It finally creates a way for people to remedy a serious problem: a severe lack of fiber-to-the-home connectivity. Fiber optics lie at the core of all future broadband access options because it is the superior medium for moving data, with no close comparisons. As a result, global demand for fiber infrastructure is extremely high: China’s seeking to connect 1 billion of its citizens to symmetrical gigabit access, and many advanced EU and Asian nations rapidly approach near-universal deployment. Crucially, these countries did not reach these outcomes naturally through market forces alone, but rather by passing infrastructure policies much like the IIJA.

Now it’s up to elected officials in states, from governors to state legislators, to work to ensure the federal infrastructure program delivers 21st-century ready infrastructure to all people. Some states are ahead of the curve. In 2021, California embraced a fiber infrastructure for all effort with the legislature unanimously passing a historic investment in public fiber. State Senator Lena Gonzalez led this effort by introducing the first fiber broadband-for-all bill; EFF was a proud sponsor of this bill in Sacramento.

Other states are behind the curve by overly restricting the ability for local governments and utilities to plug the gaps that private internet service providers (ISPs) have left for sixteen years and counting. (2005 was when private fiber-to-the home deployment really kicked off.) Maintaining those barriers, even as federal dollars are finally released, guarantees those states’ failures to deliver universal fiber; the federal law, while important, isn’t sufficient on its own.  Success requires maximum input from local efforts to make the most of this funding.

What Is in the Federal Infrastructure Law?

Understanding what progress we’ve made this year—and what still needs to be done—requires understanding the IIJA itself. The basic structure of the law is a collaboration between the federal government’s National Telecommunication Information Administration (NTIA), the Federal Communications Commission (FCC), and the states and territories. Congress appropriated $65 billion in total. That includes $45 billion for construction funds and $20 billion for efforts promoting affordability and digital inclusion. This money can be paired with state money, which will be essential in many states facing significant broadband gaps.

Responsibility for different parts of this plan falls to different people. The NTIA will set up a grant program, provide technical guidance to the states, and oversee state efforts. The FCC will issue regulations that require equal access to the internet, produce mapping data that will identify eligible zones for funding, and implement a new five-year subsidy of $30 per month to improve broadband access for low-income Americans. Both agencies will be resources to the states, which will be responsible for creating their own multi-year action plan that must be approved by the NTIA.

The timelines behind many of these steps are varied. The NTIA’s grant program must be established by around May 2022; states will then take in that guidance and develop their own action plans. Every state will receive $100 million plus additional funding to reflect their share of the national unserved population—a statistic that the FCC will estimate.

Congress also ordered the FCC to issue “digital discrimination” (also known as digital redlining) rules that ban deployment decisions based on income, race, ethnicity, color, religion, or national origin. EFF and many others have sought such digital redlining bans. Without these kinds of rules, we risk cementing first- and second- class internet infrastructure based on income status. Currently, companies offer high-income earners ever-increasingly cheaper and faster broadband, while middle to low-income users are stuck on legacy infrastructure that grows more expensive to maintain, while increasingly growing slower as broadband needs expand.

The digital discrimination provisions do allow carriers to exempt themselves from the rules if they can show economic and technical infeasibility for building in a particular area, which will limit the impact of these rules in rural markets. However, there should be no mistake that there is no good excuse for discriminatory deployment decisions in densely populated urban markets. These areas are fully profitable to serve, which is why the major ISPs that don’t want to serve everyone, such as AT&T and Comcast, fought so hard to remove these provisions from the bipartisan agreement. But this rulemaking is how we fix the access problem. It is time to move past a world where kids go to fast-food parking lots to do their homework and where school districts' only solution is to rent a slow mobile hotspot. This rulemaking is how we change things for those kids and for all of us.

Local Choice and Open Access Are Necessary If States Want to Reach Everyone with Fiber

The states are going to need to embrace new models of deployment that focus on fostering the development of local ISPs, as well as openly accessible fiber infrastructure. The federal law explicitly prioritizes projects that can “easily scale” speeds over time to “meet evolving connectivity needs” and “support 5G [and] successor wireless technologies.” Any objective reading of this leads to the conclusion that pushing fiber optics deep into a community should lie at the core of every project (satellite and 5G rely on fiber optics). That’s true whether it is wired or wireless delivery at the end. A key challenge will be how to build one infrastructure to service all of these needs. The answer is to deploy the fiber and make it accessible to all players.

Shared fiber infrastructure is going to be essential in order to extend its reach far and wide. EFF has produced cost-model data demonstrating that the most efficient means to reach the most people with fiber connections is deploying it on an open-access basis. This makes sense when considering that all 21st-century broadband options from satellite to 5G rely on fiber optics, but not all carriers intend to build redundant, overlapping fiber networks in any place other than urban markets. The shared infrastructure approach is already happening in Utah, where fiber infrastructure local governments are deploying fiber and enabling several small private ISPs to offer competitive gigabit fiber services. Similarly, California’s rural county governments have banded together to jointly build open-access fiber to all people through the EFF-supported state infrastructure law.

Needless to, say states have to move past the idea that a handful of grants and subsidies will fix their long-term infrastructure problems. They have to recognize that we’ve done that already and understand the mistakes of the past. This is, in fact, the second wave of $45 billion in funding we’ve done for broadband. The previous $45 billion was just spent on slow speeds and non-future proofed solutions, which is why we have nothing to show for it in most states. Only fully embracing future-proofed projects with fiber optics at their core is going to deliver the long-term value Congress is seeking with its priority provisions written into statute.

States Must Resist The Slow Broadband Grift

Here is a fact: It is unlikely Congress will come around again to produce a national broadband infrastructure fund. A number of states will do it right this time, which will alleviate the political pressure to have Congress act again. A number of states will take the lessons of 2021 and of the past when planning how to spend their infrastructure funding. In a handful of years, those states are probably going to have a super-majority of their residents connected to fiber. But, unfortunately, it’s possible some states will fall for the lie—often pushed by big ISPs—that slow networks save money.

We know that the “good enough for now” mindset doesn’t work. Taking this path will waste every dollar, with nothing to show for it. Networks good enough for 2021 will look slow by 2026, forcing communities to replace them to remain economically competitive. The truth is, speed-limited networks cost a fortune in the long run because they will face obsolescence quickly as needs grow. On average, we use about 21% more data each year, and that trend has been with us for decades. Furthermore, with the transition towards distributed work, and the increasingly remote delivery of services such as healthcare and education, the need for ever-increasing upload speeds and symmetrical speeds will continue to grow.

The slow broadband grift will come from industry players who are over-invested in "good enough for now" deployment strategies. It is worth billions of dollars to them for states to get this wrong. And so they will repeat their 2021 playbook and deploy their lobbyists just like they did with Congress—though they mostly failed—to the states. Industry players failed to sway Congress because everyone understands the simple fact that we will need more and more broadband with each passing year.

Any ISP that comes to a state leader with a suggested plan needs to have its suggestions scrutinized using the technical objectives Congress has laid out this year. Can their deployment plan “easily scale” into ever increasing speeds? Will it meet community needs and enable 5G and successor wireless services? And, most importantly, will it deliver low-cost, high-quality broadband access?

Many of these questions are answerable with proper technical vetting. There are no magical secrets of technology, just physics and financial planning. But it remains to be seen whether the states will allow politically well-connected legacy industries to make the call for them, or to rely on objective analysis focused on long term value to their citizens. EFF worked hard in 2021 to make 21st century ready broadband-for-all a reality for every community. We will continue do everything we can to ensure the best long-term outcome for people. If you need help convincing your local leadership to do the right thing for the public—connecting everyone to 21st-century internet access through fiber optics laid deep into your community—you have a partner in EFF.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2021.