Legislation designed to expand broadband access becomes law despite lawmaker’s constitutional concerns

Broadband is the latest infrastructure quickly becoming essential for individuals and industries across the country. Students increasingly need high-speed Internet to do their homework, doctors need it to access patient files, and farmers need it to get market information. High-speed Internet is widely available in most urban areas in the United States, but residents and businesses in rural areas are being left out. According to a poll by NPR, 21% of rural Americans say it is difficult for them to access high-speed Internet.

For certain populations, the lack of high-speed Internet is a nuisance. Students often have to congregate in public Wi-Fi hubs in order to get work done, and uploading files takes much longer than is efficient. For others, it is a matter of life and death. Older and disabled Americans in rural areas largely rely on the Internet to get medical advice and prescriptions. According to the NPR poll, 68% of rural Americans use the Internet to obtain health information.

According to a recent report by the North Carolina Budget and Tax Center, the broadband access gap is even wider for low-income folks. While access is overall much more limited in rural areas than in urban areas, rural households with incomes over $75,000 are less likely to lack broadband access than are rural households with incomes under $20,000. According to this report, the unwillingness of private markets to extend to areas without a large population, especially when residents of the area are low-income, is a factor in reinforcing “intergenerational cycles of poverty.”

Both this report and a report by the North Carolina League of Municipalities advocate for government involvement that would treat broadband as a public good rather than solely a private investment.

Senate Bill 310, a bipartisan bill primarily sponsored by Senators Harry Brown (R-Jones), Paul Newton (R-Cabarrus), and Mike Woodard (D-Durham), aimed to facilitate this goal by allowing electric membership corporations (i.e. electric cooperatives) to seek federal grant funds to provide broadband services to rural North Carolinians. It passed almost unanimously last Tuesday, the one “no” vote coming from Representative Pricey Harrison (D-Guilford).

“The bill is unconstitutional,” said Rep. Harrison when asked why she voted against it. In an email, she stated that her legislative staff had repeatedly found issues with Section 2 of the bill, which allows easements used by electric companies for electrification purposes to also be used to provide broadband services. She identified issues with the takings clause, the contract clause, and access to courts due to the provision in Section 2 that would prevent class actions from being filed against electric corporations in trespass suits.

“I otherwise like the bill but didn’t feel I could support it with unconstitutional provisions,” Rep. Harrison said.

Another bill that aims to foster infrastructure for broadband expansion, the FIBER NC Act, has been stuck in committee for over two months. House Bill 431, which is co-sponsored by Rep. Harrison, would give local governments the authority to “build broadband infrastructure and lease it to private operators,” according to the North Carolina League of Municipalities, thereby encouraging the public-private partnerships for which the NCLM advocates.

Additionally, both the House and Senate versions of the budget in their current forms would provide a $15 million recurring grant to the Growing Rural Economies with Access to Technology, or GREAT, program. The GREAT program provides funds to projects aiming to serve “economically distressed” areas of the state with broadband. Under the provisions of this program, broadband providers submit applications for grant money, and the Broadband Infrastructure Office assesses these applications by the following criteria:

1. Percentage of unserved households that would now be served, the higher the better
2. Minimum upload and download speed, the faster the better
3. Other various metrics, such as whether or not the project would provide digital literacy training and/or low-cost service for low-income households

Senate Bill 310 was signed into law by Governor Cooper last Thursday.

Aditi Kharod is a student at UNC Chapel Hill and an intern at NC Policy Watch.