Mount Rainier

Service providers in the state of Washington are concerned about legislation pending in the state’s House of Representatives. Included in the 425-page budget bill is wording that would only allow funding from the federal Broadband Equity Access and Deployment (BEAD) program to be used to build open-access networks.

“Our member companies, even those with open access networks, don’t support that mandate,” said David Ducharme, director of the Broadband Communications Association of Washington (BCAW), in an interview with Telecompetitor.

According to the budget bill  that passed the commerce committee in the Washington House, state broadband offices “may only award federal or other state funding to a project that will result in the construction or improvement of open-access broadband infrastructure that remains open access for the useful life of the subsidized project.”

The bill goes on to define open access as meaning an arrangement in which the network owner “offers nondiscriminatory access to and use of its network on a wholesale basis to other providers seeking to provide broadband service to end-user locations, at rates that include a discount from the provider’s retail rates reflecting the costs that the subgrantee avoids by not providing retail service to the end user location.”

BCAW members include some of the nation’s largest cable companies, and according to Ducharme, those companies won’t pursue funding for deployments in unserved areas of the state if the open access requirement remains in place.

“It wouldn’t be their policy to open up small slivers of their network,” Ducharme said.

He added, though, that by excluding the large providers from program participation, the state would be “missing out on a tremendous opportunity” because the providers are “well positioned to be able to upgrade and maintain” the networks.

Jerome Delvin, the commissioner for Washington’s Benton County and former state legislator, agreed.

In an interview with Telecompetitor, Delvin noted that Benton County is very rural, that a lot of money will be required to bring service there to serve a relatively small number of people and that funding recipients are required to invest some of their own money in the project.

Considering all those factors, he said an open-access network requirement doesn’t make sense.

“If the state’s policy is that networks have to be open access, I don’t think we’ll get a lot of takers on that money,” said Delvin, in a reference to BEAD funding. “And as county commissioner, I wouldn’t want to have to administer a whole other technology.”

A Test of NTIA vs. State Authority

Perhaps of bigger concern, though, is that the open access mandate conflicts with guidelines for the BEAD program established by NTIA, which is administering the program, according to Ducharme. States will administer BEAD funding but must conform to NTIA guidelines.

According to BEAD rules, applicants can improve their likelihood of being awarded funding by offering open access, but applicants aren’t required to use an open access approach.

“NTIA is very clear that they want open access to be a weight, not a gate,” said Ducharme.

According to Ducharme, the open access mandate was not initially included in the House budget bill but was added recently at the behest of certain legislators who believe public money should go to the public.

Washington is expected to be allotted around $1 billion in BEAD funding, but service providers are concerned that the funding could be in jeopardy if the House bill becomes law. According to Ducharme, state legislators are scheduled to be in session for less than 10 more days. A version of the budget bill passed the state senate without the open access mandate, and service providers are hopeful that ultimately the budget will be adopted without the mandate.

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