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After Legal Defeat, US Mayors Vow to Continue Municipal Broadband Fight

The FCC suffers a blow, but the battle goes on in Congress and the states.

Two weeks after a federal court dealt a major blow to municipal broadband advocates, dozens of US mayors and city leaders vowed on Wednesday to continue the fight for local control of next-generation communications networks.

These community leaders are speaking out after the US Court of Appeals for the Sixth Circuit ruled that the Federal Communications Commission lacks the authority to preempt state laws that pose barriers to municipal broadband development.

In a letter to the mayors of Chattanooga, TN and Wilson, NC—the two cities that had asked the FCC to preempt such state laws—forty-two US mayors and local leaders expressed their "support and solidarity with your efforts advocating for the ability of all communities to choose the broadband solutions that are right for each of our communities."

"We believe in aligning broadband options with community needs, instead of being hindered by restrictive, one-size-fits-all barriers sometimes put up at the state level," the city leaders wrote. "While our paths vary, we are united by our commitment to competition and the right of self-determination for all our communities, free from interference."

The letter, which was organized by Next Century Cities, a nonprofit group that advocates for community broadband efforts, was signed by Boston Mayor Marty Walsh, Seattle Mayor Ed Murray, Oakland Mayor Libby Schaaf, and dozens of other local leaders from around the country.

The letter is the latest salvo in a multi-year battle that echoes one of the great debates in American history—the fight over federalism and the balance of power between the national government and the states. Supporters of the FCC maintained that Congress gave the agency the power to preempt restrictive state broadband laws. Opponents argued, successfully, that the federal government was interfering with states' rights.

This battle is far from over. Cities across the country recognize that affordable, high-speed internet access is a powerful tool for economic growth, equal opportunity, and citizen empowerment. That's why scores of cities are racing to develop faster, cheaper alternatives to services offered by corporate giants like Comcast that wield monopoly power in many markets.

But these forward-thinking municipalities are frequently stymied by roadblocks in the form of state laws that thwart community broadband efforts—laws that were often pushed by lobbyists working at the behest of the nation's largest telecom companies, including Comcast, Verizon, and AT&T.

It's no surprise that these corporate giants are opposed to local efforts aimed at delivering faster, cheaper internet service. After all, what business likes to be confronted by a competitor offering superior service at lower prices? The broadband incumbents often argue that publicly-owned networks create a "non-level playing field." But community broadband advocates say these corporate giants are just trying to protect their turf.

In Wednesday's letter, the city leaders criticized the court's decision as a "disappointing reminder that the ability of local communities to make our own internet decisions remains at risk."

"We are concerned about the detrimental impact [the ruling] will have on community members' ability to access fast, affordable broadband internet access, and how it will prevent the expansion of your cities' broadband networks to neighboring underserved communities, as well as what it could mean in communities nationwide," the city leaders wrote.

A FCC spokesperson told Motherboard that the agency is still weighing its legal options, which include appealing the Sixth Circuit's decision to the Supreme Court.

In the wake of the ruling, some community broadband advocates say the focus must shift away from the FCC and toward the states that have passed laws restricting publicly-owned networks.

"We need to go state by state to overturn these laws, while working with cities to develop their networks," Christopher Mitchell, Director of Community Broadband Networks at the Institute for Local Self-Reliance, told Motherboard.

Others argue that Congress needs to step in and pass legislation explicitly prohibiting states from passing laws that prevent local communities from developing their own networks.

As it happens, such a bill exists—the "Community Broadband Act," which was introduced by Sen. Cory Booker, the New Jersey Democrat, along with several of his colleagues, including Sen. Ron Wyden, the Oregon Democrat.

"Congress must pass our Community Broadband Act to stop states from prohibiting municipal broadband development (aka Big Cable competition)," Sen. Wyden wrote in a tweet after the Sixth Circuit's decision.

Unfortunately for Booker, Wyden, and their colleagues, there's virtually no chance such a bill will pass while Republicans control the Senate and the House. Their prospects would brighten substantially, however, if Democrats win control of Congress and Hillary Clinton is elected president in November.