Short-Term Muni Broadband Backlash Seen Unlikely in State Legislatures
Thursday's party-line FCC vote to grant petitions for pre-emption of restrictive municipal broadband laws in North Carolina and Tennessee is unlikely to soon spur a legislative backlash, industry observers said in interviews. A pair of Tennessee lawmakers who favored a pre-emption petition from the Electric Power Board of Chattanooga said that they believe the commission’s vote could be helpful in their bid to modify their state's municipal broadband restrictions. The other pre-emption petition the FCC granted came from Wilson, North Carolina (see 1502260030).
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The FCC has insisted it won’t use its pre-emption authority against state laws that institute total bans on municipal broadband networks, but it’s unlikely that legislators in states that now have only restrictions on deployment will now pursue total bans because of the agency's action, said Bartlett Cleland, American Legislative Exchange Council director-Communications and Technology Task Force. “I suspect we will be dissecting the outcome of this insinuation into the state relations with their municipalities for a long time,” Cleland said. “That’s not a relationship to be trifled with.” States are far more likely to pursue legislation that specifically strengthens their general authority over municipalities, Cleland said. “I suspect that’s where their energy will be -- that’s the threat, it just happens to be expressed in a telecommunications venue.”
Total bans on municipal broadband are no more likely to occur now, because most laws that have passed were “crafted to not look like bans,” said Next Century Cities Policy Director Christopher Mitchell. “I think industry’s afraid to come out and blatantly say that they want to limit local authority. I don’t want to say that we can win in all 50 states, but I like our chances if there’s a discussion of whether a state’s going to ban everyone from doing this.” North Carolina and Tennessee appear near-certain to challenge the FCC’s pre-emption in court (see 1502020048), which may be prompting some state legislators to delay any further restrictions, an industry lobbyist said. The Missouri House hasn’t acted on HB-437 since Rep. Rocky Miller introduced it in early January, prompting criticism from the Coalition for Local Internet Choice (see 1501120021). Miller, a Republican, didn’t comment. The state Senate’s Local Government Committee is considering SB-266, which mirrors many provisions in HB-437.
The Tennessee General Assembly is unlikely to consider an expansion of its existing 1999 municipal broadband law this year but could ease some provisions in that law, said state House Assistant Majority Leader Kevin Brooks. Brooks and fellow Republican Sen. Janice Bowling are co-sponsoring legislation that would allow municipalities operating an electric utility to provide utility services outside their electric system service area, including broadband. Brooks’ bill (HB-1303) is assigned to the state House Utilities Subcommittee, while Bowling’s bill (SB-1134) is assigned to the state Senate Commerce Committee.
Brooks said he and Bowling filed their legislation in early February “in anticipation of the FCC ruling, hoping it would go in our favor, and it did.” The commission’s decision “will do nothing but help” the chances of HB-1303 and SB-1134 passing, Brooks said. “It adds both credibility and synergy to what we’re trying to accomplish. We use an analogy here in the Bible Belt that a three-stranded cord is not easily broken, and we now have local, state and federal recognition of the importance of broadband in all communities.” Brooks said he has received substantial feedback from constituents supporting the FCC’s decision since Thursday. The FCC’s action is one of “multiple factors” that have converged to create a “perfect storm,” he said.