The governor of Colorado, Democrat Jared Polis, officially signed a bill on Monday removing barriers to municipal broadband in place since 2005. The new law (SB23-183) – passed with bipartisan support – is expected to make it easier for municipalities to participate in federal broadband programs like the $42.5 billion Broadband Equity, Access and Deployment (BEAD) program.

While the 2005 law, SB05-152, prohibited municipalities from using public funding or infrastructure to deliver broadband service without first obtaining voter approval, the new law "gives local governments the authority to provide broadband service, either on their own or by partnering with industry service providers, without holding a local election," according to Colorado's Office of Information Technology.

"Today, the state took a big step in establishing a competitive economy for generations to come. SB23-183 removes the biggest obstacle to achieving the Governor's goal to connect 99% of Colorado households by the end of 2027," said Colorado Broadband Office Executive Director Brandy Reitter in a press release.

Despite the 2005 law making it difficult for municipalities to launch their own broadband networks, several have managed to do so through ballot measures. Douglas and Pueblo are two of the more recent counties to pass voter referenda opting out of the 2005 law this past November. Consumer advocacy organizations like the non-profit Colorado Municipal League (CML) have used an "opt out kit" to help 120 municipalities opt out of the 2005 law, paving the way for fiber networks like Pulse in Loveland, Colorado, which is on track to complete its buildout this year after launching in 2018.

With SB23-183's passage, however, municipalities will no longer need to hold a vote in order to deliver broadband services via public funding or infrastructure.

BEAD relevance

One reason that matters in particular is that the BEAD program, under rules written by the NTIA, stipulates that final BEAD proposals from state broadband offices must include a "description of efforts undertaken by the Eligible Entity to ensure the participation of non-traditional broadband providers (such as municipalities or political subdivisions, cooperatives, non-profits, Tribal Governments, and utilities), including an explanation for awards to traditional broadband providers when one or more non-traditional providers submitted competing proposals to serve an area..."

While that doesn't mean the NTIA will block funding to states with municipal broadband bans, the language does leave the door open for potential delays for states where these barriers prevented public entities from fully participating in BEAD.

"It really feels like the language the NTIA is using in this initial plan is intentional. It's designed not to draw a hard line in the sand ... it seems like it's more language intended to open a dialogue in areas where there really hasn't been one before," said Tyler Cooper, editor-in-chief of the consumer advocacy group BroadbandNow, in a conversation with Light Reading for The Divide podcast published today.

"These plans will have to be submitted for public comment and will have to be sort of defended in public for the first time ... I do wonder if there's just going to be a controversy of some kind when it comes to these states having to defend [their roadblocks]," he added.

BroadbandNow recently released a report warning about potential BEAD delays due to these restrictions. Other states with existing bans and roadblocks to municipal broadband on the books include Alabama, Iowa and Nebraska, to name a few.

The state of Colorado is expected to receive anywhere from $500 million-$842 million through the BEAD program once the NTIA allocates funds this June, according to funding frameworks from Broadband Money and ACA Connects. The state has also been approved for $170.8 million in capital projects funds for broadband, to connect 18,000 locations, through the US Treasury Department.

Meanwhile, efforts are underway by Senate Republicans in Congress to get the NTIA to remove its "encouragement of government-owned networks" from BEAD's notice of funding opportunity (NOFO).

In a letter to NTIA Chief Administrator Alan Davidson in April, signed by 11 Republican Senators, the lawmakers called NTIA's statute on municipal networks a "misguided incentive, which was not included in the IIJA, [that] could divert program dollars to less capable providers—a real risk given municipal broadband's track record of costly failure." The Senators requested a response from NTIA by this Thursday, May 4.