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.

Filed Under: broadband, competition, fcc, muni broadband, municipal broadband

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


    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.

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