States Would Sue to Kill City Internet Service

State legislatures threatened to take the FCC to court to protect restrictions on municipal broadband networks.

Laying down fiber-optic cable in Louisville, CO. 
National Journal
Brendan Sasso
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Brendan Sasso
July 23, 2014, 8:50 a.m.

A group rep­res­ent­ing state le­gis­latures is threat­en­ing to sue to pro­tect re­stric­tions on city-run In­ter­net net­works, claim­ing the pro­jects of­ten waste tax­pay­er money.

The Na­tion­al Con­fer­ence of State Le­gis­latures sent a let­ter Tues­day to the Fed­er­al Com­mu­nic­a­tions Com­mis­sion, say­ing it would file a con­sti­tu­tion­al chal­lenge against any fed­er­al ac­tion to pree­mpt state laws lim­it­ing mu­ni­cip­al broad­band.

“Aside from the con­sti­tu­tion­al chal­lenges, such an at­tempt dis­reg­ards the count­less hours of de­lib­er­a­tion and votes cast by loc­ally elec­ted law­makers across the coun­try and sup­plants it with the im­pulses of a five-mem­ber ap­poin­ted body in Wash­ing­ton, D.C.,” the group wrote.

FCC Chair­man Tom Wheel­er has said he may strike down state laws that re­strict the abil­ity of cit­ies to build their own In­ter­net net­works. Such laws stifle com­pet­i­tion and of­ten leave con­sumers with slower In­ter­net ac­cess, Wheel­er claims.

In a blog post last month, Wheel­er ar­gued that loc­al gov­ern­ments “shouldn’t be stopped by state laws pro­moted by cable and tele­phone com­pan­ies that don’t want that com­pet­i­tion.”

Tele­com and cable com­pan­ies have been lob­by­ing for the state re­stric­tions around the coun­try, ar­guing that it’s not fair for them to com­pete with gov­ern­ment-owned In­ter­net pro­viders. The com­pan­ies claim the city pro­jects dis­cour­age private in­vest­ment and are of­ten ex­pens­ive fail­ures.

In the let­ter to the FCC, the state le­gis­lat­ive group said it shares Wheel­er’s “as­pir­a­tion that every Amer­ic­an have ac­cess to broad­band,” but that it was reas­on­able for 21 states to en­act laws to pre­vent waste­ful pro­jects.

The group urged Wheel­er to “heed the prin­ciples of fed­er­al­ism” and cau­tioned him of “the nu­mer­ous de­cisions by the United States Su­preme Court with re­gard to the re­la­tion­ship between the state and its polit­ic­al sub­di­vi­sions.”

If the FCC tries to strike down a state law, it would likely point to Sec­tion 706 of the Tele­com­mu­nic­a­tions Act, which gives the agency the au­thor­ity to pro­mote the de­ploy­ment of broad­band. State laws that re­strict mu­ni­cip­al broad­band could be in vi­ol­a­tion of that pro­vi­sion, ac­cord­ing to the FCC.

House Re­pub­lic­ans ap­proved an amend­ment to an ap­pro­pri­ations bill last week to bar the FCC from pree­mpt­ing state broad­band laws. The pro­vi­sion, however, is un­likely to pass the Sen­ate.

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