House Passes Blackburn Measure to Halt FCC Action on Municipal Broadband

"We don’t need unelected federal agency bureaucrats in Washington telling our state what they can and can’t do with respect to protecting their limited taxpayer dollars and private enterprises,” said Rep. Marsha Blackburn, R-Tenn., vice chairman of the House Commerce Committee, on the House floor Tuesday, introducing the amendment.

The House voted 223-200 in favor of Blackburn’s amendment Wednesday, her spokesman confirmed. Lawmakers then approved the appropriations bill itself, which the White House and House Democrats have opposed, in a 228-195 vote. The FCC did not comment on either item. The appropriations bill would give the FCC $53 million less than requested -- $323 million -- and the FTC $293 million, as requested. FCC Chairman Tom Wheeler had testified before both chambers earlier this year about the agency’s need for more money, citing IT and enforcement needs, as well as about his intentions regarding state laws restricting municipal broadband.

Blackburn’s one-paragraph amendment says none of the appropriations money may be used “to prevent such States from implementing their own State laws with respect to the provision of broadband Internet access service,” naming 20 states that have some restrictive laws on the books, including Tennessee. Blackburn found it “deeply troubling” that Wheeler is considering ways to pre-empt state laws that restrict communities’ ability to form municipal broadband networks, she said on the floor.

Agency officials have said they may tackle such state laws on a case-by-case basis when petitioned. That stance is a “direct challenge on the constitutionality of states’ sovereign functions,” Blackburn said. More than 20 states have laws restricting municipal broadband networks. Industry-backed groups such as the American Legislative Exchange Council have lobbied in favor of such state laws.

"We have serious questions about whether municipalities should get into the broadband business,” AT&T Chief Strategy Officer John Stankey said upon pressing by Sen. Ed Markey, D-Mass., at a Senate Commerce Committee hearing Wednesday. “We will advocate at the municipal government level we think this is a mistake.”

Municipal networks have had some success but also “spectacular failures,” such as with the Utah Telecommunication Open Infrastructure Agency, Blackburn remarked. She and dozens of Republicans wrote the FCC a letter on municipal broadband last month criticizing the agency’s tentative plan.

Appropriations Financial Services Subcommittee ranking member José Serrano, D-N.Y., spoke against the amendment and brought up opposition from NATOA, the National Association of Counties and the National League of Cities. “Any such amendment is an attack on the rights of individual citizens,” Serrano told Blackburn Tuesday night. “Pre-emption will not force anyone to do anything that the municipalities themselves to not want to do.”

"This would be a boon to the cable companies that are fighting hard to restrict any threat to their monopolies,” Chris Mitchell, director of the Community Broadband Networks Initiative at the Institute for Local Self-Reliance, told us. “The FCC is currently mandated to encourage competition and local governments have proved more than capable of rolling out the most advanced fiber networks available in the country. This amendment would hold the states included back by limiting competition.” Blackburn and others “do not trust communities to make these important decisions for themselves,” Mitchell added. NCTA declined comment.

Other groups protested Wednesday. “In the flurry of activity yesterday surrounding the FCC’s comment deadline on the net neutrality debate, members of Congress are quietly trying to slip through a bill that will block the development of real alternatives for high-speed Internet,” the Electronic Frontier Foundation said in a blog post (http://bit.ly/1qHotpG), asking people to write to Congress in protest. The Institute for Local Self-Reliance posted another blog post (http://bit.ly/WhVakx) asking people to contact Congress with complaints.

"Hopefully, this amendment will go the way of many other bad ideas to come from Rep. Blackburn’s desk,” Free Press Senior Director-Strategy Tim Karr told us. “It probably surprises no one that AT&T, Verizon and the National Cable and Telecommunications Association make up three of Blackburn’s top five campaign donors. Meanwhile, many in Tennessee, including people in Blackburn’s own district, struggle to find affordable access to high-speed Internet.” Karr said he suspects there would be “enough public concern” to kill any hopes of such a measure passing the Senate.

"The odds are probably against Congress passing anything controversial in telecom, and muni broadband certainly falls into that category,” Guggenheim Partners analyst Paul Gallant said. “I think Chairman Wheeler feels pretty strongly about facilitating city buildouts, so short of actual legislation, I doubt a House-passed bill would have much effect on how the Commission moves forward on this.”

"I don’t think FCC Chairman Tom Wheeler will be intimidated by Blackburn’s efforts,” Karr agreed. “Supporting municipal broadband is one of the few issues on which he’s been willing to take a strong stand.”