US agency confirms California signed broadband award

The National Telecommunications and Information Administration (NTIA) confirmed on 3 November that California had signed its final broadband award agreement. The California Public Utilities Commission had ratified the funding plan in September, but a dispute over federal conditions stands in the way of grants to providers.

In a November 2 letter to NTIA Administrator Arielle Roth, commission President John Reynolds said the commission would execute provider subgrant agreements if and when the agencies resolve their disagreements over the conditions and other applicable requirements are met. He directed staff to work with NTIA toward a solution.

The planned $1.42 billion deployment allocation would fund providers bringing broadband to 270,571 locations in unserved and underserved areas. California could ultimately receive up to $1.86 billion for deployment and other projects combined under the Broadband Equity, Access, and Deployment program, known as BEAD.

The dispute over enforcement

Section 50 of the award requires California to commit not to enforce obligations that directly or indirectly regulate broadband rates, terms or conditions, or impose net-neutrality, open-access or other utility-style rules, against funded providers and their affiliates. The restriction covers everywhere they serve in California, including locations outside the program, while a subgrant is in its performance, extended-performance or federal-interest period.

California’s net-neutrality law bars providers from blocking or slowing lawful traffic and from charging websites or online services to deliver or prioritize their traffic. The state defeated provider challenges to the law, and an earlier federal attempt to preempt state net-neutrality laws also failed.

A separate California law bans mobile providers from slowing first responders’ service during emergencies. It passed in 2019, after Verizon slowed an unlimited data plan used by Santa Clara County firefighters during a 2018 wildfire. Local wildfire-preparedness groups have warned that the award condition could obstruct enforcement of that protection and cell-tower battery-backup requirements.

The agencies’ competing positions

Reynolds said the commission reserved its right to challenge the legality, interpretation and applicability of the award conditions. He also said acceptance did not mean the commission would abandon mandatory legal duties or constrain other California agencies’ enforcement powers, which he said were outside the commission’s authority.

NTIA told Ars Technica that the award terms constitute the entire agreement and that California’s letter is not part of it. Governor Gavin Newsom’s office said the state had not surrendered its enforcement rights and that its laws, including net-neutrality protections, remain in place.

Stanford Law professor Barbara van Schewick said the letter preserved California’s legal arguments but did not change the award. Section 50 remains in place, she said, and removing it would require a court decision or NTIA’s written agreement.

If NTIA maintains its position, California could sue over the condition’s constitutionality, Ars Technica said. If grants proceed, providers could challenge state enforcement or argue that they are exempt from the laws. For now, the agencies’ staff are to work toward resolving their differences before the commission signs provider agreements.