FOIA Gem: Helpful Advice from VA Cable Lobby

The Virginia Cable Telecommunications Association (VCTA) is one of the staunchest opponents of public broadband in the state. They are a top donor to politicians like Kathy Byron, who famously tried to kill broadband authorities in the state with her 2017 Virginia Broadband Deployment Act. Moreover, in 2020, members of ArlFiber got to witness VCTA’s president Ray LaMura preside like a mafia don (flanked by a small army of telecom/cable lobbyist goons) over a meeting brokered by Del. Steve Heretick with a trio of his constituents from Portsmouth. The Portsmouth contingent had managed to cajole Del. Heretick to put in a bill that would make a small change in the VA Code that would allow Portsmouth’s city government to provide free wireless internet service at a couple of public housing units, which produced a ferocious reaction from the VA telecom industry. Shortly after that meeting, Heretick dropped the bill, and Del. Levine essentially shelved his far more extensive municipal broadband reform bill (there was a happy ending for Portsmouth – they formed a broadband authority not long after that and used CARES Act money to execute that public housing wifi project).

In light of all this, ArlFiber was quite surprised (and borderline amused) to find – via a FOIA request – a memo from Mr. La Mura informing Arlington County that VCTA’s reading of the VA Code says it’s perfectly legal for Arlington Public Schools to extend their wifi network to students in privately owned buildings:

While we are not privy to all the details, the background on this as we understand it is that Arlington County wanted to use new fixed wireless technology (CBRS) to provide free “private LTE” service to several buildings along Columbia Pike that APS and the Department of Technology Services had identified as being populated with students whose families were broadband deprived. Normally this would be impossible, since it would be a government-only network providing internet service to a private entity/subscriber, something that Article 5.1 (Provision of Certain Communications Services) of the VA Code does not allow unless the locality forms a separate entity called a “wireless service authority” or goes through the arduous process of being certificated as a municipal local exchange carrier (MLEC) (aside: we do not meet the qualifications for the latter, nor would the restrictions imposed on MLECs allow us to provide free service). Once Mr. La Mura sent the aforementioned memo blessing this, the County clearly felt reasonably comfortable moving forward with this project, which the Board approved at its November 2020 meeting.

So what does the memo say? According to the crack legal team at VCTA (who, granted, probably ghost wrote this law in the first place and thus should be considered authorities on it), Arlington County would not be in violation of the VA Code here, because this highly targeted wifi project does not quite meet the definition of “qualifying services” (as defined under the aforementioned Article 5.1):

On the face of it, this may seem like a rare instance of the telecom industry putting the public good ahead of returns for its investors; however, a close reading of the next page of the memo appears to us to reveal a different motivation: stop the County from considering a “wireless service authority” or anything else that might make this a permanent affair.

Comcast’s concern here most likely stemmed from the fact that the County had been informed in late October by the Director of the VA Department of Housing and Community Development (DHCD) that forming a broadband authority would be the best option for most communities looking to provide service to low-income families during the pandemic. Here is an excerpt from that memo:

Unfortunately, the County took the path of least resistance and went through with the project on the strength of what essentially is a promise from Comcast not to sue. This certainly expedited execution, but now we are left in a somewhat awkward position where Comcast will decide the fate of this fixed wireless setup once the COVID-19 emergency has officially ended. It’s possible that Comcast will allow this to stand even after the pandemic, but the cable lobby’s bill this past session (championed by Sen. Boysko) that essentially gives private providers exclusive right to partner with schools on low-income service projects would suggest that they are not likely to continue to turn a blind eye to our Columbia Pike “wifi blasters”, as County Manager Mark Schwartz is fond of calling them.

The County, of course, has one option open to it: form a broadband authority. As was mentioned above, Portsmouth formed an authority to do wireless projects at its public housing complexes. We could just transfer ownership of the CBRS equipment to the authority who would continue to provide (and could potentially upgrade this to a fiber-to-the-home setup) to low-income families in these buildings (and without all the “students-only” restrictions). In fact, cities across the U.S. that do have a community network have been doing exactly that even before the pandemic.

If you think forming an authority to safeguard these investments and working toward bridging the digital divide once and for all is a good idea, please sign on to our petition to the County Board to form a broadband authority for Arlington.

Published by arlfiber

A coalition of your Arlington neighbors is advocating for the creation of a community-owned internet service provider to provide faster, lower-cost internet service that will respect our privacy, commit to permanent net neutrality, and strive for digital equity.

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