FCC takes aim at local laws that limit broadband, but faces states’ rights pushback from Republicans

Federal Communications Commission (FCC) Chairman Tom Wheeler listens during an open meeting to receive public comment on proposed open Internet notice of proposed rulemaking and spectrum auctions May 15, 2014 at the FCC headquarters in Washington, DC. The FCC has voted in favor of a proposal to reform net neutrality and could allow Internet service providers to charge for faster and higher-quality service. (Photo by Alex Wong/Getty Images)

The cable industry and telcos regularly pour money into lobbying campaigns that aim to persuade state governments to thwart community broadband initiatives. The goal is to stop cities from creating fast local internet networks that might compete with their own.

On Tuesday, FCC Chairman Tom Wheeler published a blog post suggesting he might put a stop to such shenanigans by invoking the federal government’s preemption power, which prevents states from legislating in areas where the U.S. has clear authority.

Wheeler published the post after meeting with the mayor of Chattanooga, Tennessee, a city that has attracted a thriving high-tech scene, in no small part because of its fast local broadband services that led to the moniker “Gig City” — but whose accomplishment is being undercut by the cable industry’s lobbying campaign.

“Ironically, Chattanooga is both the poster child for the benefits of community broadband networks, and also a prime example of the efforts to restrict them,” wrote Wheeler in the statement.

Those efforts to restrict community broadband have been underway for years, and take the form of the cable industry and telcos leaning on lawmakers and throwing money into local election campaigns. In one egregious example, cable companies spent over half a million dollars in tiny Longmont, Colorado in a failed attempt to stop the community from issuing bonds to pay for a next-generation fiber optic network.

The cable industry is also whipping out its checkbook in places like Kansas City and Seattle to stifle other muni broadband initiatives. The lobbying amounts to an effort to buy state lawmakers, and to sandbag smaller cities with expensive lawsuits that will make others think twice about improving their broadband infrastructure.

In this context, Wheeler’s plan to invoke preemption appears to be a commonsense move to stop incumbents from using local politics to stop competition. He will have a fight on his hands, however, as Republicans have already seized on his earlier comments to suggest he is usurping states’ rights.

A letter last week signed by eleven Republican Senators, including Tea Party favorite Ted Cruz, warned that the FCC would be “well-advised to respect state sovereignty.”

At first glance, the argument seems ill-founded from both a legal and policy perspective. The federal government has clear authority to regulate the country’s communication infrastructure and, as cases like Chattanooga show, fast broadband appears essential for cities that want to attract new industries. But given the larger debate over broadband policy, including Comcast’s plan to acquire its biggest competitor Time Warner Cable, the politicization is hardly surprising.


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