FCC Outlines Plan To Crush Awful State Protectionist Broadband Laws

On the same day the FCC voted to approve new net neutrality rules, we noted that the agency took steps on an issue that might actually be more important: municipal broadband. While net neutrality rules are designed to protect consumers from a lack of last-mile competition, the agency’s moves on municipal broadband are intended to actually strike at the issue of limited competition at the root. As we’ve noted a few times, ISPs (with ALEC’s help) have passed laws in twenty states preventing those towns and cities from deciding their own infrastructure needs for themselves.

It’s pure, unabashed protectionism: the bills do little more than protect regional duopolies from change while hamstringing local communities desperate for better service. Usually the laws are passed under the auspices of protecting taxpayers from themselves, ignoring that the bills’ sole purpose is to protect duopoly revenues. Petitioned by muni-networks in Tennessee and North Carolina that have been blocked from expanding, the FCC plans to use its authority to preempt the protectionist portions of these awful laws.

In much the same way the municipal broadband issue was overlooked on vote day, so too was the actual plan when it was released alongside the agency’s new net neutrality rules last week. The full Memorandum Opinion and Order (pdf) clarifies that the FCC intends to use Section 706 of the Telecommunications Act of 1996 to preempt state laws that conflict with federal regulation of interstate commerce for the good of local communities. The agency lists five legal principles it claims give it the right to put these protectionist laws out to pasture:

  • Article I, section 8 of the Constitution gives Congress the power to regulate interstate commerce.
  • Internet access unquestionably involves interstate communications, and thus interstate commerce. Broadband subscribers pay for the right to go to any lawful destination on the Internet, wherever located.
  • Congress has given the Federal Communications Commission the authority to regulate interstate communications. Indeed, section 1 of the Communications Act of 1934, as amended (Act), specifically gives the Commission jurisdiction over “interstate and foreign commerce in communication by wire and radio.”
  • The Commission has previously exercised its authority to preempt state laws that conflict with federal regulation of interstate commerce, for example with respect to state regulation of VoIP, the deployment of wireless facilities, and its order prohibiting local franchising authorities from unreasonably refusing to grant competitive cable franchises. These preemption decisions all further competition.
  • Finally, section 706 of the 1996 Act directs the Commission to take action to remove barriers to broadband investment, deployment and competition. There is no question that provisions of the state laws in question do limit broadband deployment — they expressly prohibit Wilson and Chattanooga from providing broadband services to more people in more places, even places where there is no broadband currently available
  • Unsurprisingly, the broadband industry isn’t particularly happy that the FCC has woken up from a decade-long coma on this issue and is finally addressing these ISP-constructed obstructions. Marsha Blackburn, flush with broadband industry campaign cash, has been busy fighting the FCC’s push under the pretense that she’s just ultra worried about states’ rights (that protectionist law written by corporations crushes local rights en masse isn’t, apparently, a worry). As such she’s introduced a law (that has no chance of passing) aimed at gutting FCC authority.

    ISPs have also threatened to sue, but given AT&T and Comcast’s interests in getting their mergers approved — and Verizon busy trying to kill the net neutrality rules — they may find it a bridge too far to open up an entirely new legal fight. Again though, the best way for the broadband industry to stop towns and cities from getting into the broadband business? Provide better service. These towns and cities aren’t getting into the business because it’s fun or because they’re mean and want to make Comcast’s CEO cry. They’re doing so because they’ve spent a decade in the firm grasp of utterly apathetic monopolies and duopolies, and they’re refusing to take it anymore. And while there are certainly plenty of examples of federal overreach, in this instance the FCC finally helping them is a good thing.

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