FCC Votes To Allow Cities To Expand Broadband Networks

FCC Chairman Tom Wheeler speaking at the FCC's Open Meeting on February 26, 2015.

FCC Chairman Tom Wheeler speaking at the FCC’s Open Meeting on February 26, 2015.

As expected, the FCC today has confirmed an order permitting two cities to expand their existing municipal fiber broadband networks despite state-level laws that block them from doing so.

After a brief weather delay caused by this never-ending winter, the commission voted 3-2 to allow the cities of Wilson, NC and Chattanooga, TN to expand their existing public networks. Chairman Tom Wheeler was joined by commissioners Jessica Rosenworcel and Mignon Clyburn in approving the measure, while commissioners Ajit Pai and Michael O’Rielly dissented.

Speakers at the meeting all referred several times to the FCC’s Congressional mandate to encourage the deployment of advanced telecommunications nationwide on a reasonable and timely basis — a mandate that, the FCC concluded earlier this year, is not currently being met. Several speakers also made references to chairman Wheeler’s stated goal to protect, encourage, create, and promote broadband expansion and competition.

Letting communities take on the task of creating and maintaining networks increases both access and competition, and therefore is a good thing, the majority argued. Commissioner Clyburn spoke first, remarking that, “For scores of Americans, the choice of one, let alone multiple, broadband networks, is a dream deferred, and the promise of universal access remains unkept.”

“Today’s vote,” she continued, “seeks to draw a line in the sand once and for all” by removing barriers for the expansion of broadband access.

Commissioner Rosenworcel also sang the praises of municipal networks, saying, “[Wilson, Chattanooga, and others] did something that was fundamentally American: when existing providers failed to meet their needs, they came together as a community and they built it themselves.”

Commissioner Pai, in his lengthy and wandering dissent, described a pile of case law leaning on the age-old argument of states’ rights. The FCC has no authority to interfere with state sovereignty, Pai argued, before delivering a first-grade level explanation of federalism to the audience. “A state doesn’t lose that absolute discretion [over its municipal jurisdictions] simply by giving a munitipality some authority, rather than all, to offer broadband service,” Pai explained. “Unfortunately for the commission, all the lipstick in the world can’t disguise this pig.”

Commissioner O’Rielly joined Pai in dissenting, but where Pai went for existing case law, O’Reilly went straight for the destruction of capitalism and the free world as we know it. “This highlights the unprecedented lengths the commission is willing to go in undermining the free market system, the federal statutes, the U.S. constitution, and common sense in order to dictate where, when, and how broadband is provided in this country,” he opened, before mentioning his, “profound opposition to the offering of broadband or any communications service by a government entity,” including municipalities.

Taking the step of letting publicly-owned entities compete in a market that currently exists as a monopoly, he implied, will transform the U.S. into “other countries like Cuba, China, Russia, and Venezuela.”

“If there’s a market need,” he continued, “an individual with a dream and a propensity for risk will enter to provide service,” in direct opposition to all of reality.

As chairman, Wheeler spoke last. And he reminded his fellow commissioners what, exactly, the FCC is for.

“You know, there are a few irrefutable truths about broadband,” Wheeler began:

“One is, you can’t say that you’re for broadband and then turn around and endorse limits on who can offer it. Another is that you can’t say,’I want to follow the explicit instructions of congress to, quote, ‘remove barriers,’ the specific language Congress has told us to do — to remove barriers to infrastructure investment — but endorse barriers on infrastructure investment. I think, as they say in North Carolina, that dog don’t hunt. You can’t say you’re for competition but deny local elected officials the right to offer competitive choices.”

North Carolina and Tennessee are among the 19 states that have industry-sponsored laws on the books that prevent incumbent ISPs like AT&T from having to cope with any actual competition.

As we explained yesterday, the FCC’s ruling today has a narrow scope, even if it is likely to have a large impact as a piece of precedent. The broadband utilities in Wilson and Chattanooga are now permitted to act in defiance of a few particular North Carolina and Tennessee laws, respectively, but those laws remain on the books. Other cities in those states — as well as every other state with a similar law in place — will for now at least have to go through the same FCC petition process if they wish to expand or build their own networks.

Wheeler acknowledged the narrow scope of today’s vote, but added, “I do hope that this attention does shine some light on the fact that this is an ongoing effort to impose restrictions on what elected local officials can do at the request of their people, and that it calls out the activities of incumbents to block consumer choice and competition through legislation.”

The FCC commissioners will be holding a series of press conferences to issue additional statements regarding today’s meeting later this afternoon.

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