A partisan battle is brewing over publicly-owned broadband networks.
Now that a federal court has blocked an effort by the FCC to boost community broadband, Congress should respond by passing a bill making it easier for cities to build affordable, high-speed networks for citizens, according to public interest advocates.
Dozens of local communities around the country have developed such publicly-owned networks, in an effort to lower prices, boost speeds, and increase competition in markets often dominated by one or two telecom titans.
But nearly two dozen states have passed laws designed to thwart community broadband—laws that were often pushed by lobbyists working at the behest of the nation's largest telecom companies, including Comcast, Verizon, and AT&T, as my colleague Jason Koebler has documented.
These companies and their political allies often claim that publicly-owned networks would create a "non-level playing field" putting the industry giants at a competitive disadvantage. Community broadband advocates argue that these companies are really just trying to protect their monopoly power in many markets.
"Let's be clear: industry-backed state laws to block municipal broadband only exist because pliant legislators are listening to their Big Cable and Big Telecom paymasters," former FCC Commissioner Michael Copps, who now serves as Special Adviser to public interest group Common Cause, said in an emailed statement. "These corporate providers invest in campaign contributions rather than in deploying high-quality broadband."
In 2014, the FCC agreed to a request from local authorities in Chattanooga, Tennessee and Wilson, North Carolina to preempt restrictive laws in those states, in an effort to fulfill the agency's mandate to promote competition and remove barriers to broadband investment.
State officials in Tennessee and North Carolina promptly sued the FCC, claiming the agency was overstepping its authority and violating "states' rights." On Wednesday, a three-judge panel of the US Court of Appeals for the Sixth Circuit agreed, throwing a wrench into efforts by the FCC to encourage the development of locally-owned networks.
"This is a very disappointing decision, but support for local internet choice is growing rapidly across America, and the fight to preserve, protect, and advance community decision-making will go on," Jim Baller, president of Baller Herbst Stokes & Lide, the law firm that represented Chattanooga and Wilson, said in an emailed statement.
Deb Socia, Executive Director of Next Century Cities, which supports municipal broadband efforts, called the ruling "a blow to communities in Tennessee and North Carolina that were fighting for more accessible, affordable internet access for their residents, and will sadly prevent the expansion of each city's broadband network to neighboring underserved communities."
Moving forward, the FCC could ask for a so-called "en banc" hearing by the full Sixth Circuit, but such hearings are very rare. The agency could also appeal the ruling to the Supreme Court, but there's no guarantee that the high court would agree to hear the case. (A FCC spokesperson told Motherboard that the agency is reviewing its legal and policy options.)
That's why the ultimate solution, as a matter of federal policy, may be for Congress to pass a law encouraging the development of locally-owned networks. In its 2010 National Broadband Plan, the FCC asked Congress to do just that, and "make clear that Tribal, state, regional and local governments can build broadband networks."
Last year, three influential Democratic senators, led by Cory Booker of New Jersey, introduced the "Community Broadband Act," which would block any state or local law that has "the effect of prohibiting or substantially inhibiting" publicly-owned broadband networks.
"I would love to see renewed enthusiasm around this bill, and I would love to see it pass," Christopher Mitchell, Director of Community Broadband Networks at the Institute for Local Self-Reliance, told Motherboard.
But with Republicans currently in control of both the House and the Senate, Booker's bill has virtually no chance of becoming law, especially given the tremendous amount of political influence wielded by the likes of Comcast and AT&T, Mitchell said. He warned that even if the legislation moved forward, industry-friendly lawmakers could try to weaken the bill or insert anti-community broadband provisions.
Sen. Edward J. Markey, the Massachusetts Democrat who is a co-sponsor of Booker's bill, told Motherboard in an emailed statement that he and his colleagues will "continue to fight to ensure that local communities have the power to decide for themselves how to invest in their own telecommunications infrastructure."
It's worth noting that a similar bill was introduced in 2005 by Republican Sens. John McCain, Lindsey Graham, and Norm Coleman, along with Democrats Frank Lautenberg, John Kerry, and Russ Feingold. That legislation enjoyed bipartisan support, but ultimately failed to pass, thanks in part to vigorous push-back from the telecom industry.
Mitchell said that if a similar bill were to be introduced in the House, it would face furious opposition from Republicans, including Rep. Marsha Blackburn, the influential Tennessee lawmaker who has received mountains of campaign cash from Verizon, AT&T, Comcast and telecom industry trade groups.
"With the GOP in control, Marsha Blackburn would crush this legislation," Mitchell said. "That's why she gets more money from the cable and telecom industry than anyone else. She would make sure it doesn't go anywhere."
Congressional action to help cities and towns build community broadband networks is clearly unlikely, at least for now. But that could change if Democrats win control of Congress this November, a not-implausible scenario given the potential down-ballot impact of the GOP's unpopular presidential nominee.