Lawmakers Wade Into Fight Over FCC Chair’s Potential Plan To Overturn Bans On Municipal Broadband

Not very much happens in Washington, D.C. in August. But even as the city slows down, FCC chair Tom Wheeler continues to make strong noises about using the FCC’s authority to preempt state laws that prohibit the expansion or creation of municipal broadband utilities. And now, some members of Congress are joining him.

Wheeler first spoke in June about potentially doing an end-run around those states. Pointing to Chattanooga’s success with municipal fiber, Wheeler said clearly at the time, “I believe that it is in the best interests of consumers and competition that the FCC exercises its power to preempt state laws that ban or restrict competition from community broadband. Given the opportunity,” he continued, “we will do so.”

The opportunity began to present itself a short while later. In July, the public broadband utility companies owned by two different cities — Wilson, NC and Chattanooga, TN — filed petitions with the FCC asking to be allowed to expand their service. Both North Carolina and Tennessee are among the twenty states that have restrictive cable lobby-sponsored laws on the books that prevent them from implementing or expanding public broadband service.

In between those two events, several Senators and members of the House of Representatives sent a letter (PDF) to chairman Wheeler asking him to take action to protect and encourage the growth of municipal broadband networks. The list of lawmakers included Massachusetts senator Ed Markey, who at a hearing in July rather spectacularly challenged executives from Comcast and AT&T to give legitimate reasons why they are so opposed to municipal broadband. (They couldn’t.)

Wheeler has now issued a formal response to the lawmakers (PDF).

In his letter, the chairman agreed that, the state laws against municipal broadband “have the effect of limiting competition in those areas, contrary to almost two decades of bipartisan federal communications policy that is focused on encouraging competition.”

He also reiterated his earlier stance on pre-emption, saying, “I respect the important role of state governments in our federal system, but I know that state laws that directly conflict with critical federal laws and policy may be subject to preemption in appropriate circumstances,” though he diplomatically added, “I recognize that federal preemption is not a step to be taken lightly without a careful consideration of all relevant legal and policy issues.”

In answer to Wheeler’s response, Sen. Markey and Rep. Mike Doyle of Pennsylvania have now issued a joint statement again calling on the FCC to take swift action.

In the statement, Sen. Markey sang the praises of competition, saying, “What the broadband market needs today are more options and greater local choice, not barriers that prevent cities and towns from participating fully in the global economy.” He then encouraged the FCC “to use its authority to ensure municipalities have the power to make decisions about their broadband infrastructure.”

Rep. Doyle echoed the sentiment, saying, “I strongly encourage [Chairman Wheeler] and the FCC to take quick and decisive action to lift restrictions that limit or prevent communities from addressing their own broadband needs.

As Motherboard points out, the statements from Sen. Markey and Rep. Doyle are most useful to Wheeler as political cover. Wheeler already faces pushback from Congress over net neutrality and major media mergers this year. Politically speaking, adding a threat to pre-empt state laws with federal regulation into the mix isn’t just pouring gasoline onto the fire; it’s adding a match and maybe a couple of sticks of dynamite just for fun. He can use all the cover he can get.

Particular interests — certain members of Congress as well as businesses — are firmly against increasing competition in the broadband marketplace, and are trying every tool in the box to stop the FCC from taking action. Rep. Marsha Blackburn of Tennessee is one of the lawmakers who takes exception to Wheeler’s statements, as Motherboard reports. In a statement, she said, “We don’t need unelected bureaucrats in Washington telling our states what they can and can’t do with respect to protecting their limited taxpayer dollars and private enterprises, adding, “This Congress cannot sit idly by and let an independent agency trample on our states’ rights.”

Earlier this summer Blackburn proposed a bill to strip the FCC of its authority to pre-empt state laws, which passed in the House but has not reached the Senate.

Coincidentally we’re sure, AT&T, Verizon, Comcast, and the National Cable and Telecommunications Association, a large industry trade group, rank very high among Blackburn’s campaign donors.

Companies with money to spend (like Comcast) aren’t just trying to block municipal broadband expansion through targeted political donations; they’re also out in force objecting on their own. When asked about municipal broadband restrictions back in July, Comcast bigwig David L. Cohen opposed public broadband as much as he could without actually having an “I hate this” sound byte on the record.

Cohen said, “As a company, we have serious questions about whether municipalities should get into the broadband business.” He continued, “I was in city government for six-and-a-half years, I know what city government can do. I think it’s a mistake to do to it, and so we will advocate at the municipal government level that we think this is a mistake. The answer is we don’t oppose it — we don’t have the right to oppose it — we have the right to advocate against it.”

By “advocating against it,” Cohen means that trade organizations representing Comcast and other companies specifically introduce and sponsor those state-level bills restricting public networks.

The FCC itself is also far from unified. Today, speaking at the National Conference of State Legislatures (NCSL), the chief of staff to FCC commissioner Ajit Pai said today that any attempt by the FCC to intervene in states’ laws would be unconstitutional, and chided Wheeler for even daring to think of it. The NCSL has promised to take the FCC to court if the commission does try to preempt any state laws.

Amidst all this, the FCC is accepting public comments until August 29 on the petitions from Wilson and Chattanooga. They will probably aim to come to a decision late this year.