Earlier this year, on the same day that the FCC approved the new net neutrality rules, it also overturned two state regulations — one in Tennessee, and one in North Carolina — that prohibit municipal broadband networks from selling to anyone outside their very limited borders.
Both states have sued the FCC in federal court to uphold these laws that were heavily supported (and allegedly written) by cable companies like Comcast and Time Warner Cable. They claim that the FCC overstepped its authority.
In response to that lawsuit, big-time Silicon Valley trade group the Internet Association, has filed an amicus brief [PDF] in support of the FCC and muni broadband expansion in general.
“Access to the Internet is today the modern equivalent to access to railroads, electricity, highways, and telephony in previous eras,” reads the brief. “And just as the federal government recognized and executed its role in encouraging, promoting, and facilitating universal access to those services, the federal government today similarly recognizes its role in promoting and facilitating access to broadband services.”
The Tennessee regulation prevents Chattanooga’s city-run EPB utility — which provides fiberoptic Internet, TV, and phone service, in addition to electricity — from offering access to nearby communities if they are outside EPB’s electric footprint. The North Carolina law prohibits the city of Wilson from selling its Greenlight broadband service outside of its home county.
Both cities petitioned the FCC, which ruled that it has an obligation under the Telecommunications Act of 1996 to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans” by “removing barriers to infrastructure investment.”
The Internet Association describes this decision as a step forward “toward broadband abundance” and that any reversal of the FCC decision would be “a step in the opposite direction, toward retrenchment, even in the face of the startling evidence regarding the state of broadband deployment and competition in America.”
The brief cites the FCC’s recent Broadband Progress Report, which found that 55 million Americans have no access to broadband.
“This failure is especially acute in rural communities, where over 50 percent of Americans lack access to broadband services,” explains the brief. “On tribal lands and U.S. territories, nearly two-thirds of residents lack broadband services. And about 35 percent of schools in the country lack access to broadband services.”
With 17% of the country lacking any broadband access, and 45% only having one option for a broadband provider, the Internet Association contends that the majority of Americans are being harmed by this lack of competition.
The brief points to some rather dire-sounding stats about broadband connectivity in the two states trying to overturn the FCC decision.
“Almost one fifth of Tennesseans lack an option for accessing the Internet at broadband speeds, more than 65 percent have access only to one option, and 17 percent have access to two providers,” explains the Association.
Because of the state regulation, EPB can’t provide service to certain neighboring communities where, according to the brief, “almost one third of residents have no provider offering broadband services,” and “nearly two thirds have access only to one provider.”
The Association says it’s a similar situation in North Carolina, where a third of residents have no option for broadband, while almost all of the remaining two-thirds only have a single provider to choose from.
The brief notes the changes that have occurred when new broadband competition enters a market. When Google started selling Google Fiber in Austin, TX, AT&T and Time Warner Cable suddenly began offering faster and more affordable service in the area.
As Chattanooga’s EPB prepared to roll out service that is several times faster than Fiber and cheaper than slower Internet access from Comcast, Comcast decided that this mid-level market should get access to its new high-speed service.
Likewise, in the Wilson area, Time Warner Cable offered better service and faster speeds after the introduction of Greenlight.
And as we recently noted, AT&T charges significantly less for its high-speed service in markets where Google Fiber exists.
“Removing barriers to providing broadband access allows more competition in the broadband access ecosystem,” reads the brief. “Competition in turn increases consumer options, incentivizes existing providers to improve their offerings, and improves the inadequate state of broadband access.”
Oral arguments have not yet been scheduled for this matter, but if the FCC is successful in defending its decisions to strike down the Tennessee and North Carolina rules, it could have a huge impact on municipal broadband.
For example, remember the story of Seth in Washington state? He almost had to sell his new house after being lied to by both Comcast and CenturyLink that they could provide Internet service to his home office.
Seth’s county has a high-speed fiber network but Washington state law prohibits the county from selling service directly to consumers. So even though there was high-speed fiber running very near his property, he had to jump through all sorts of bureaucratic hoops to be able to connect to that network.
Public utility officials we talked to in Washington said they and others are waiting for the decision (and eventual appeals) of the FCC case before they decide whether or not to ask the Commission to overturn the rules that keep them from offering competitive services.
Opponents of muni broadband have tried to classify it as some sort of Soviet Bloc type mess that will cost consumers more. But the fact is that muni broadband would just be another option in a marketplace that is in dire need of competition.
If a city-owned network is too expensive or offers bad service, no one is obliged to take it. But for those Americans who currently live in markets where they only have one broadband provider to choose from, private cable companies are already getting away with charging too much for lackluster service.