FCC Will Target State Municipal Broadband Bans Within Weeks
The FCC plans to explore “how best to eliminate anti-competitive state bans and other barriers to broadband competition,” and Chairman Tom Wheeler will announce an approach for challenging bans on community broadband by mid-May, an agency spokesman told us. Wheeler “believes that communities should decide for themselves about whether to build community broadband networks for their residents,” the spokesman said Monday. A draft rulemaking on net neutrality rules (see separate report in this issue) doesn’t ask about the FCC preempting state and local laws barring publicly funded broadband network buildouts (CD April 28 p2).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Wheeler never planned to challenge state bans as part of the revised net neutrality rules, an agency official said. The municipal broadband approach to be disclosed by the FCC next month will be a “directive” from Wheeler to commission staff “on the all the issues and proceedings to be brought to the full Commission to address key issues of the tech transitions, including competition and how to remove barriers to entry,” said the agency’s spokesman by email.
Municipal broadband got tied up in the net neutrality discussion after U.S. Court of Appeals for the D.C. Circuit Judge Laurence Silberman said in a Verizon v. FCC footnote that “an example of a paradigmatic barrier to infrastructure investment would be state laws that prohibit municipalities from creating their own broadband infrastructure to compete against private companies.” The implication was that Communications Act Section 706, which enables the commission to remove barriers to broadband buildout, could be a useful tool against those state laws, observers have said. Wheeler said after the net neutrality rules were thrown out (CD Jan 16 p1) that the commission would look for opportunities to “enhance Internet access competition” by examining “legal restrictions on the ability of cities and towns to offer broadband services to consumers in their communities.”
The approach for challenging bans on community broadband is part of the “managerial framework” Wheeler instructed staff to create as part of the large-scale legal, regulatory and policy issues arising from the IP transition, an FCC official said. Agency staff have been meeting with communities that are providing, and wish to provide broadband services, to discuss how to combat the state bans, he said.
"I am glad the FCC is committed to ensuring all communities have the authority to decide locally if a network is a wise investment,” said Christopher Mitchell, Telecommunications as Commons Initiative director at the Institute for Local Self-Reliance.
It wouldn’t make much sense to tackle muni broadband laws in the context of the net neutrality rulemaking, said Phoenix Center President Lawrence Spiwak. “If you were going to raise something that is going to be that controversial, the better way to do that is in a separate notice of inquiry, or” NPRM, he said. The net neutrality rules are all about preventing the unwanted conduct of an ISP, he said. “If you bring in federal preemption of state laws, it’s a very different topic.” What the FCC can do with its newfound Section 706 authority “is a much broader question,” Spiwak said. It doesn’t make sense from a legal or political standpoint to attack everything in one giant proceeding, he said: “You're better off limiting yourself” to the big issue of whether ISPs can engage in two-sided pricing.
The decision to continue considering pre-emptions disappointed one official representing states. James Ward, director of the National Conference of State Legislatures state-federal relations committee, said he’s “disappointed that an appointed panel at the FCC thinks it is in a better position than elected state policy makers to determine the path for local jurisdictions."
Municipal broadband proponents say state bans prevent municipalities from being able to improve service in their communities. “Local governments welcomed” Wheeler’s “support of local government’s ability to ensure our constituents are full participants in the broadband era,” said municipal telecom lawyer Gerard Lederer of the Best Best law firm, by e-mail. “Neither the Chairman, nor Commissioner [Mignon] Clyburn, have shared with local government any change in their positions of support. We look forward to working with all the commissioners to ensure consumers have access to broadband services and where possible, a choice of service providers.” Lederer represents the National League of Cities, which supported pre-emption as a matter of preserving local control.