FCC Gives Up On Municipal Broadband Fight

from the knocked-out-in-the-first-round dept

While over-shadowed by the net neutrality vote the same day, the FCC's decision last year to protect municipal broadband was potentially more important. For more than fifteen years incumbent ISPs have quite literally been allowed to buy state laws that hinder communities from improving their broadband networks, or even in some instances from striking public/private partnerships with the likes of Google Fiber. These protectionist laws, passed in nineteen different states, are a huge reason why you currently only have the choice of one shitty cable provider and one shitty telco for broadband service (if you're lucky).

The FCC originally believed it could use its Congressional mandate to ensure "even and timely broadband deployment" to strike down the most restrictive portions of these laws. But as we noted earlier this month, an appeals court ruled that the FCC doesn't have this authority under Section 706 of the Communications Act. And in speaking with the New York Times this week, the agency stated for the first time publicly that this is a fight it won't be pursuing further:
"The F.C.C. does not plan to appeal the federal court’s decision “after determining that doing so would not be the best use of commission resources,” Mark Wigfield, a spokesman for the agency, said in a statement. That means municipalities that want to keep expanding their municipal broadband networks will have to fight to overturn state laws on their own."
Easier said than done. Telecom incumbents, like so many large players, have an absolute chokehold over state legislatures. So much so that ISPs like AT&T continue to have success passing new laws of this type despite growing, significant bipartisan public opposition to them. For years ISPs quickly passed these laws by framing this as a partisan issue of government "competing with the free market." But as Comcast and AT&T consumers get an ongoing master class in how broken and not free the telecom market is, members of both parties have grown increasingly hostile toward protectionism of this type.

What happens now? In a statement (pdf), FCC boss Tom Wheeler proclaimed that he would happy to testify on the behalf of municipal broadband ISPs and their supporters, should they try to push this issue further:
"Should states seek to repeal their anti-competitive broadband statutes, I will be happy to testify on behalf of better broadband and consumer choice. Should states seek to limit the right of people to act for better broadband, I will be happy to testify on behalf of consumer choice."
Some members of Congress are pushing a law that would repeal state laws that curtail local broadband rights, but it has virtually no chance of passing in a Senate equally beholden to AT&T, Charter, Verizon and Comcast campaign contributions. A group of 42 mayors and local government officials have also fired off a letter (pdf) to muni-broadband deployments in North Carolina and Tennessee, expressing "solidarity" in the face of the FCC's court loss:
"While our paths vary, we are united by our commitment to competition and the right of self-determination for all our communities, free from interference," states the letter. "The recent decision from the United States Court of Appeals for the Sixth Circuit was a disappointing reminder that the ability of local communities to make our own internet decisions remains at risk."
So despite the court loss, there is a critical mass of people, activists, and small providers trying to do something about ISPs writing protectionist state law. But without some federal help and laser-like focus, their ability to magically fix the pay-to-play state legislative process remains a tall order.

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  • identicon
    Anonymous Coward, 31 Aug 2016 @ 11:43am

    They are fighting to their own deaths

    These moronic behemoths are killing off their support and have doomed themselves to be replaced by the first better option to come along. Google Fi and a new generation of satellite internet providers are nearly ready to deploy nation wide and then world wide and let people pay for Gigabyte of bandwidth in any way you want. You know, kind of like a utility should act. They are government sanctioned monopolies who are literally selling everything about us that they can get their hands on to the highest bidders, and making us pay for the privilege of letting them do it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Aug 2016 @ 1:57pm

      Re: They are fighting to their own deaths

      You said it yourself.

      They are government sanctioned monopolies

      This entire problem was created by the FCC to start with, they have somehow let this beast off its leash!

      As long as people keep calling for MORE regulation... nothing will be changing.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 31 Aug 2016 @ 3:34pm

        Re: Re: They are fighting to their own deaths

        As opposed to what exactly? Just let the market sort itself out without outside interference? By this point it's pretty clear how well that tends to work, and it's generally not a good thing for the public.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 31 Aug 2016 @ 5:13pm

          Re: Re: Re: They are fighting to their own deaths

          That's right, blame free market, something that has not existed for a long time, longer than you or I have been alive. Try to put the beer down long enough to allow your drowning brain cells to comprehend the fact that you, along with many others, are blaming something that no longer exists over a problem that your blind love for regulation has created.

          “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.”

          ~Thomas Jefferson

          Said by a man of wisdom greater than our current congress and you combined.

          Congratulations, you like most other Americans are why this nation is falling. You don't even know a fucking thing about the Economy you are participating in. But heck that is expected, you were likely educated by the joke American Education System.

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 31 Aug 2016 @ 5:17pm

            Re: Re: Re: Re: They are fighting to their own deaths

            I notice despite your barrage of laughable insults you didn't actually offer up a solution, or even a suggestion of one.

            If regulations aren't the answer, and the free market is a myth, what do you think is the best way to handle it?

            reply to this | link to this | view in chronology ]

    • identicon
      spodula, 1 Sep 2016 @ 12:26am

      Re: They are fighting to their own deaths

      That only works in a market where competition exists. Look how well they have succeeded in delaying and blocking Google fibre in various places.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Aug 2016 @ 11:54am

    There is no need for municipal Broadband. Just make Comcast & others abide by the same rules as AT&T was forced to submit to decades ago: allow other providers to access their closed network.

    reply to this | link to this | view in chronology ]

  • identicon
    Baron von Robber, 31 Aug 2016 @ 12:10pm

    A shame that one thing the government does well, cheaper than the private offering (can't use the plural here), gets that one thing holding it back overruled.

    :(

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Aug 2016 @ 1:19pm

    I hate Comcast as well as all of the other large ISP's.

    However, after reading the U.S. Constitution, I missed the part where the Federal Government has the right to overturn laws passed by a state legislature that has no effect on anyone not living in that state.

    Can someone point out that section for me?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Aug 2016 @ 1:43pm

    So what is the penalty for breaking the state law in each staye? The municipalities should just ignore it and build their network anyway.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 31 Aug 2016 @ 6:12pm

      Re:

      If nothing else it would certainly make for an interesting lawsuit. Municipality ignores bought state law to build their own broadband network, gets sued/fined by state for it... yeah, that would be a regular PR train-wreck for the state I'm thinking.

      reply to this | link to this | view in chronology ]

  • icon
    John David Galt (profile), 31 Aug 2016 @ 6:43pm

    It seems to me that Techdirt's staff is reading this decision too broadly.

    All the ruling really said is that the FCC cannot preempt a state's right to forbid cities in that state from providing municipal broadband services, because city governments belong to the state they're in. I agree with that.

    It did not strike down the rest of FCC's efforts to preempt state and local protectionist laws and foster more competition in the industry.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 1 Sep 2016 @ 2:47pm

      Re: It seems to me that Techdirt's staff is reading this decision too broadly.

      It did not strike down the rest of FCC's efforts to preempt state and local protectionist laws and foster more competition in the industry.

      What else were they trying to preempt other than the prohibitions against municipal broadband?

      reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 31 Aug 2016 @ 9:06pm

    What we truly need is the legal option for citizens in every state to vote for or against each law that the state tries to pass, with the results of the vote being binding.

    Also, there needs to be a mechanism for the people to suggest new laws or veto existing ones.

    Voting for the politicians is unreliable, people need to be able to affect the laws directly regardless of the political stance on them.

    reply to this | link to this | view in chronology ]

    • icon
      R.H. (profile), 1 Sep 2016 @ 8:07am

      Re:

      We have a form of that in Michigan but, it doesn't always turn out as expected. We had a referendum to remove a law a couple years ago. Our state legislature modified it slightly and passed it again the next year.

      There was another referendum on the ballot to change our minimum wage. After the signatures were collected and verified to place it on the ballot, the legislature repealed and replaced the law that the referendum would be modifying causing the referendum to be considered invalid.

      It's far too expensive to keep doing signature drives to get citizen referendums on the ballot every time our legislature decides to override us.

      reply to this | link to this | view in chronology ]


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