A bipartisan coalition of lawmakers continues to make slow but steady progress on legislation that would make federal broadband grants tax exempt, providing significant relief for big and small companies alike trying to bridge America’s stubborn digital divide.

U.S. Representatives Jimmy Panetta (D-CA) and Mike Kelly (R-PA) and Senators Mark Warner (D-VA) and Jerry Moran (R-KS) recently reintroduced the Broadband Grant Tax Treatment Act (BGTTA) in both the House and Senate. The bill would amend IRS code to ensure that funding for broadband deployment from the Infrastructure Investment and Jobs Act (IIJA) and the American Rescue Plan Act (ARPA) will not be considered taxable income.

“We have made significant strides to ensure that access to high-speed internet is available to more Americans than ever,” Senator Warner said in a statement. “But taxing broadband investment awards diminishes our efforts. This legislation ensures that individuals and businesses are able to reap the benefits of every dollar set aside for broadband expansion and deployment so that we can accomplish our goal of bringing reliable broadband to every corner of Virginia.”

The exemptions included in the bill would also apply retroactively to any qualified grant amounts received in 2021 and 2022.

Ashland, Oregon has long been a trailblazer in terms of meeting community demand for faster, more affordable broadband access.

The city-owned network has also had a bumpy road—at times being branded as an example of municipal broadband failure. But the network continues to grow as it faces down an urgently-needed pivot toward a fiber-based future. 

Despite the current economic healthiness of the network and the clear benefits it’s brought to the community over the last 20 years, local officials are talking about divesting instead of making the financial commitment to continue the investment the city has already made.

The community-owned Ashland Fiber Network (AFN) was first developed in the late 1990s by locals angry at the high prices and historically terrible customer service by the local cable company. Like so many community broadband alternatives, it was a network built from grassroots frustration at consolidated market failure. 

Benefits of the community networks were on stark display during the telecommuting and home education boom of the Covid-19 crisis, when the city announced it would be providing free 30 Mbps broadband to all city residents without access to the Internet. 

Image

AFN is an open access network, meaning that numerous companies are allowed shared access to the core city network, delivering a variety of broadband, phone, and TV services. As a result, the network’s no-contract broadband pricing tends to be simpler and less expensive than options found in cities dominated by one or two private sector telecom monopolies.

At the end of 2019, Congress passed the Revitalizing Underdeveloped Rural Areas and Lands (RURAL) Act, fixing a tax law change that threatened to raise rates and delay the expansion of broadband for rural cooperative members across the country.

Passage of the RURAL Act ensures that cooperatives can accept federal funds for broadband deployment, disaster relief, and other efforts without risking their nonprofit tax exempt status. A change in the 2017 tax law would have labeled these funds as revenue for the first time, potentially causing co-ops to exceed the allowable percentage of non-member income they must maintain to remain tax exempt.

After Senators Tina Smith (D-Minn.) and Rob Portman(R-Ohio) and Representatives Adrian Smith (R-) and Terri Sewell (D-Ala.) introduced the bipartisan bill in April, it attracted 55 additional cosponsors in the Senate and more than 300 in the House. It was eventually incorporated into the consolidated appropriations act and signed into law in December.

“Obstacles From the Federal Government”

We described the possible impact of the 2017 tax law change on rural cooperatives over a year ago, when Senator Smith first brought the issue to our attention.

Failure to remedy it would have forced some co-ops to choose between continuing with desperately needed broadband and disaster recovery projects and increasing their members’ rates. Northwestern Electric Cooperative CEO Tyson Littau described the difficulty of that decision to the National Rural Electric Cooperative Association (NRECA):

Do we rebuild and try to strengthen our distribution system and pay the taxes, or do we delay the mitigation project that would improve 1,200 miles of line throughout our territory? I think we have a responsibility to the membership to improve the system for the future.

In June, Governor JB Pritzker signed the Rebuild Illinois capital plan, a $45 billion effort that will repair and improve all manner of infrastructure in the state. Within the plan, state leaders intend to dedicate $420 million to upgrade and expand broadband infrastructure. Such a significant investment can make a real difference in the state, as long as decision makers adopt smart policies and allow local communities to receive funding for broadband projects.

Gas Tax for Gigabits

An increase in the state’s motor fuel tax will fund most of the broadband initiative. The increase in gas prices at the pump, which took effect on July 1, jumped from 19 to 38 cents. Similarly, a special fuels tax on diesel, liquefied natural gas, and propane increased from 2.5 cents to 5 cents. State analysts anticipate the increase will garner an additional $1.24 billion to state coffers in 2020.

The Rebuild Plan also grants state bonding authority for infrastructure projects and Cook County municipalities are permitted to raise their gas taxes by an additional three cents per gallon. There are also title and registration fees that will contribute to the fund.

As part of the plan, Illinois created the Connect Illinois initiative, which is part of the Illinois Department of Commerce. One of the goals of the initiative's Broadband Office is to provide all K-12 students with high-speed Internet access at no charge. As part of the Rebuild Illinois plan, $20 million will be used to update and expand the Illinois Century Network, which serves K-12 schools, colleges and universities, public libraries, and Internet access providers.

Connect Illinois and the initiative’s Broadband Office will administer the grants made possible by the fuel tax increase. The office will also work to determine federal grants that are available and how best to access them to advance the state's goals.

Connectivity Council

For many rural Americans, the local electric or telephone cooperative is their best hope for finally obtaining modern-day connectivity. With the support of government funding, rural cooperatives have brought electricity, telephone service, and more recently broadband access to some of the most rugged and sparsely populated places in the country.

However, recent tax code changes might prevent co-ops from connecting more rural communities. Cooperatives could potentially lose their tax exempt status if they accept government grants for broadband expansion and disaster recovery — an unintended yet foreseeable consequence of the Republican “Tax Cuts and Jobs Act” passed late last year. In a press release, Senator Tina Smith called attention to the oversight, noting, “This uncertainty has caused cooperatives significant concern and frozen some of their grant applications.”

Who’s Ready for Some Tax Policy?

As nonprofit membership corporations, rural electric and telephone cooperatives are exempted from paying taxes under section 501(c)(12) of the Internal Revenue Code (IRC). To maintain this tax exempt status, cooperatives must derive at least 85 percent of their income from members (e.g., from selling electricity). This is sometimes referred to as the the member income test or the income source test.

This is the transcript for Episode 272 of the Community Broadband Bits Podcast. Christopher Mitchell sits down with three local leaders in Lyndon Township, Michigan, to discuss how the community decided to pursue a Fiber-to-the-Home network. Listen to this episode here.

Gary Munce: We had a voter turnout of 43 percent of the Township residents. That is by far and away the largest turnout for any August election in the history of voting in Lyndon township.

Lisa Gonzalez: This is episode 272 of the Community Broadband Bits podcast from the Institute for Local Self-Reliance. I'm Lisa Gonzalez. In August, the small community of Lyndon Township, Michigan voted to raise property taxes to fund publicly-owned fiber optic infrastructure. Marc Keezer, Gary Munce, and Ben Fineman from Lyndon joined Christopher to talk about the vote, their proposed network, and how they spread the word about improving connectivity in their rural community. Our guests also describe the work of Michigan Broadband Cooperative that's working on the Lyndon project. Now, here's Marc, Gary, Ben, and Christopher.

Chris Mitchell: Welcome to another edition of the Community Broadband Bits podcasts. I'm Chris Mitchell, and today I'm speaking with a cohort of folks from Lyndon Township in Michigan. I'll start with introducing Marc Keezer, Lyndon Township Supervisor. Welcome to the show.

Marc Keezer: Thank you, Chris.

Chris Mitchell: We also have Gary Munce who led the Lyndon Broadband initiative ballot campaign and is also a board member of the Michigan Broadband Cooperative. Welcome to the show.

Gary Munce: Thanks, Chris.

Chris Mitchell: And our third guest is Ben Fineman who volunteers as president of the Michigan Broadband Cooperative and is someone that I know has been working on this for a long time. Welcome to the show.

Ben Fineman: Thank you very much for having us, Chris.