Adapted from an article by By Doug Dawson, June 23, 2023 | Original POTs and PANs article here
There was an interesting political effort in the Washington State legislature recently to expand the use of open-access networks. There was language included in House Bill 1147 that would require that any network funded from BEAD grants must become open-access and available to other ISPs.
Open-access has been a topic in Washington for many years. There was a long-time prohibition against Public Utility Districts (PUDs) from offering retail broadband. These county-wide government-owned utilities wanted to bring better broadband and settled by building open-access networks. Over the last few decades, a number of PUDs have launched open-access fiber networks, some of them with tens of thousands of fiber customers.
For those not familiar with open-access, it is a network where multiple ISPs can buy access to reach customers. This provides customers with the choice of using multiple ISP on the same network. All reports are that customers like the extra choices they get. Every broadband survey my firm has ever conducted has shown a huge public preference for choice.
The legislature finally relaxed the prohibition for PUDs last year, but in a bizarre fashion. The legislature passed two conflicting bills that allow PUDs to provide retail broadband services. Rather than choose between the two bills, the Governor signed both simultaneously (a pen in each hand) so that both bills went into effect. As might be imagined, this created as much confusion as clarity over the issue.
I doubt that anybody will be surprised that the biggest ISPs in the state vehemently opposed this legislation. The big cable companies have always immediately fought any suggestion that they allow other ISPs to use their networks. The big telcos were forced to sell unbundled copper loops starting with the Telecommunications Act of 1996, but that requirement continues to wane as the amount of copper keeps shrinking. The telcos started fighting against the unbundling rules as it was enacted, and over the years succeeded in greatly weakening the ability of outsiders to use their copper.
Predictably, the big ISPs in the state of Washington killed this bill. The big ISPs threatened to not pursue any grant funding if this proposal becomes law. Some even made veiled threats to stop investing in the state if this became law.
But it’s an interesting concept. The BEAD grant rules have a clear preference for open-access networks, and any carrier promising an open network will get extra points on a grant application. But the open-access preference is only a suggestion and not a requirement – something the big ISPs in Washington all pointed out.
Requiring open-access is not a far-fetched idea because open-access is required on all of the middle-mile networks that were announced this week as recipients of NTIA grants. But the whole point of the NTIA middle-mile networks is to build networks to places where backbone connections are unavailable or unaffordable. Requiring the grant recipient to sell affordable connections to everybody is a good use of federal grant dollars.
But this raises a much larger question. I know there are a lot of open-access proponents in the country who think that any network funded with government dollars ought to be made open-access to provide the most value to the taxpayers who are funding it. That is exactly what was suggested in Washington, but it didn’t take very long for the big ISPs to kill the idea.
Many industry folks want to take this idea even further. I don’t think I’ve seen a thread on this topic that doesn’t include somebody who thinks government should own all grant-funded fiber infrastructure, which should then be made available to all ISPs that want to use it. Obviously the BEAD grant rules weren’t written that way, and with the sway that big ISPs hold in D.C. it probably never will happen.
It is something that US Congress — or any state legislature — could do if they have the will to enact it. We’re starting to see cities who are adopting this idea, so we’re going to keep seeing new open-access networks coming to life. I have to think that the citizens in every city close to an open-access network is going to be asking why they can’t have the same thing.