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Responding to Crazy Talk: Arguments Against FCC Restoring Local Authority - Community Broadband Bits Episode 120

Lisa Gonzalez and I have been wading though all kinds of crazy talk since the cities of Wilson and Chattanooga filed petitions with the FCC to strike down state laws that prevent them from offering Internet access to their neighbors.

In our first episode of Crazy Talk since way back in episode 72, we deal with claims that municipal networks often fail, whether the FCC has authority to restore local authority, and whether the state barriers in question are actually barriers at all.

We want your feedback and suggestions for the show - please e-mail us or leave a comment below. Also, feel free to suggest other guests, topics, or questions you want us to address.

This show is 16 minutes long and can be played below on this page or via iTunes or via the tool of your choice using this feed.

Listen to previous episodes here. You can can download this Mp3 file directly from here.

Thanks to Jessie Evans for the music, licensed using Creative Commons. The song is "Is it Fire?"

State of Minnesota's Border to Border Broadband Fund - Community Broadband Bits Episode 119

Earlier, this year, the Minnesota Legislature established a "Border to Border" Broadband fund to expand Internet access to the least connected in the state. Senator Matt Schmit and Representative Erik Simonson led the effort to establish the fund that is now administered by Danna Mackenzie. All three of them join us this week to discuss the program.

We discuss the state of Internet access in Greater Minnesota and why these elected officials fought to create a fund to improve the situation. Then we move on to discuss the details of the fund with the Executive Director of the Minnesota Broadband Office, along with some lessons for other states that may be considering taking action.

We want your feedback and suggestions for the show - please e-mail us or leave a comment below. Also, feel free to suggest other guests, topics, or questions you want us to address.

This show is 23 minutes long and can be played below on this page or via iTunes or via the tool of your choice using this feed.

Listen to previous episodes here. You can can download this Mp3 file directly from here.

Thanks to Jessie Evans for the music, licensed using Creative Commons. The song is "Is it Fire?"

Community Broadband Media Roundup - September 12

This week, you might have been tripped up by some infuriating “spinning wheels of death” on the Internet, but don’t worry, the slow-down was largely symbolic— at least for now. Fierce Telecom covered the Internet Slowdown Day protest on Wednesday, organized by “Battle for the Net." It was designed to bring attention to what will happen if so-called “slow lanes” are allowed under new FCC net neutrality rules. 

Netflix, MuniNetworks, Kickstarter, Reddit, and thousands of other sites took part in the protest. “The New Yorker’s” Vauhini Vara writes that Internet Slowdown Day produced more than 700 thousand comments about proposed FCC rules. 

Meanwhile, Amazon is positioning itself to come out on top whichever way the Net Neutrality rules fall. Susan Crawford urged the FCC to take action and “Think Chattanooga.”

“This is not a story of huge companies fighting one another. This is a sweeping narrative of private control over the central utility of our era: high-capacity Internet access. We, the people of the United States, are the collateral damage in this battle; we are stuck with second-class, expensive service.”

Muni Networks are gaining more ground, with Chattanooga and Wilson, NC still in the spotlight. Anne L. Kim took up the issue of preemption on CQ Roll Call. She interviewed Chris Mitchell for the article:

“Communities build their own networks because they think the private sector isn’t investing in them, said Christopher Mitchell… According to Mitchell, in the case of city-wide municipal fiber networks, reasons for deployment are often a mix of getting fast, reliable service at an affordable price.”

Blogger KateCA of My FireDogLake commented on the failings of the invisible hand in the telecom realm in her Corporations and The Commons post. 

“While free enterprise usually merits a hearty rah-rah in certain circles, competition between for-profit entities and publicly-owned ones seems to be a no-no, at least to Rep Blackburn and her crowd when it comes to [Chatanooga’s] EPB.”

In The New York Times, Colin Dougherty laments the search for a killer app in cities where Google Fiber has set down roots. He talked to Chris Mitchell and other experts about the difference between local control and dependence on a corporation like Google:

“It felt like a righteous invading tech company coming in to tell us how to run the city,” he said. Faster Internet helps Google in lots of ways."

The more time users spend searching the web or watching YouTube videos, the more ads Google sells and the more Google services people use. The company could also use Fiber to test new services like household-targeted TV commercials.

As FCC Chairman Tom Wheeler announced his intention to address barriers to competition and broadband deployment, several reporters, including Stephen Hardy of Lightwave Online wrote on the topic.

Regarding the definition of broadband, Ars Technica’s Jon Brodkin and Fierce Telecom’s Sean Buckley wrote that AT&T, Verizon, and others made claims that consumers simply don’t need or want faster Internet speeds.

"Consumer behavior strongly reinforces the conclusion that a 10 Mbps service exceeds what many Americans need today to enable basic, high-quality transmissions," AT&T wrote in a filing. 

AT&T’s comments were made public after Wheeler mentioned that the current definition for broadband is much slower than is necessary for economic growth.  

Casey Houser suggests that gig networks are forcing big telecom to play a game of “anything you can do I can do better”. But many communities are not waiting around for the big guys to come in. More announced this week they are dipping their collective toes into the municipal broadband pool. 

Lexington, KY mayor Jim Gray says he’s moving forward to give his city a big gig push. 

Austin, MN’s Vision 2020 group is studying how it can get its own gig, after being passed over by Google Fiber three years ago. The Daily Herald’s Trey Mewes reports that the group will be going door-to-door to get feedback about the Gig Austin proposal.

Finally, a recent article in The Advertiser counters some false statements made by a paid muni network hit man. Lafayette Utilities System (LUS) director Terry Huval said a report published by “Reason”, and written by Steven Titch is extremely flawed and biased. 

“Steven Titch, a paid analyst, and formerly a news editor in the telecommunications industry, has been criticizing LUS Fiber and other municipal broadband systems for virtually the past decade,” Huval wrote in response to the report. He takes data and twists it in a way that meets the particular needs of that client,” he said. “The bottom line for us is we are doing well. We are growing every year.”

Blackburn and Wheeler: Awkward Penpals

Back in June, some sixty House Republicans led by Tennessee’s Marsha Blackburn sent an open letter to FCC Chairman Tom Wheeler expressing their “deep concern” with his support for community networks. They took issue with comments he made at a House Energy and Commerce hearing in May, indicating his willingness to preempt incumbent-sponsored anticompetitive state laws that handicap or outright ban municipal networks. 

In the the views of Rep. Blackburn and her allies, this “sets a dangerous precedent and violates state sovereignty in a manner that warrants deeper examination.” They demanded answers from Chairman Wheeler on a set of eight questions so leading that they would make even the most partisan pollster blush. They featured many of the same “states’ rights,” “unelected federal bureaucrat,” and “unconstitutional authority” talking points used later in the floor debate over Blackburn’s anti-muni amendment, softened up and rephrased just a bit for polite company. 

In late July, Chairman Wheeler offered a formal written response. He opened with a diplomatically worded overview of the U.S. broadband sector, before launching into the heart of the matter:

“...Many states have enacted laws that place a range of restrictions on communities’ ability to make their own decisions about their own future. There is reason to believe that these laws 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. I respect the important role of state governments in our federal system, but I also know that state laws which directly conflict with critical federal laws and policy may be subject to preemption in appropriate circumstances.”

While the legal debate is all about the extent of federal authority, Chairman Wheeler correctly identifies the real policy issue: "communities' ability to make their own decisions about their own future." Preemption [meaning removing state preemption] is about enabling choice, not forcing any particular option on a local community. Conversely, "states' rights" is used by Rep. Blackburn and her allies as a blanket permission to dictate to every county, township, and municipality in a given state that they must take service from monopolistic incumbents or go without broadband entirely.

 

Chairman Wheeler gamely answered each of the questions in Blackburn’s letter, despite the fact that some were little more than veiled threats:

[Blackburn et. al:] “1. If the courts struck down the FCC’s ploy to override state laws restricting municipal broadband do you believe that such a decision would weaken the credibility of the FCC?” 

[Wheeler:] The commission gives careful consideration to all relevant factual, policy, and legal issues before making decisions…As you know, final Commission decisions are typically subject to judicial review, but I do not believe that is a reason to shy away from making important decisions. 

Translation: 

Blackburn: Don't even think about it, we will sue you. 

Wheeler: Fine by me.

Several of the other questions were variations on the theme of “How dare you!”:

[Blackburn et. al:] “2. Why does the FCC believe state governors and state legislators should not have a say over how to govern the political subdivisions of their state even though that is what they are elected to do by voters?”

and 

[Blackburn et. al] “7. Did you ever ask Congress for the authority to override states’ rights with respect to municipal broadband?”  

In defending the legal soundness of preemption, Chairman Wheeler quoted both the language of Section 706 of the 1996 Telecommunications Act as well as several favorable circuit court decisions that “specifically characterized preemption of state laws restricting municipal broadband as a ‘paradigmatic’ example of the authority given by Congress to the FCC under Section 706.”

Perhaps the best encapsulation of the entire tense Blackburn-Wheeler correspondence is given in the following exchange: 

[Blackburn et. al:] “6. How does the FCC believe Section 706 authority trumps the states’ rights in the Constitution?”  

[Wheeler:] As explained above, Section 706 establishes a strong federal policy of ensuring that broadband is available to all Americans in a reasonable and timely fashion. When state laws come into direct conflict with critically important federal law and policy, it is a long-standing principle of Constitutional law that state laws can be subject to federal preemption in appropriate cases. I do not view federal preemption as a matter to be undertaken lightly. Such action must be premised on careful consideration of all relevant issues. As noted above, in any proceeding involving these issues, the Commission will consider all relevant factual, policy, and legal issues presented to determine the appropriate course of action. 

This is the correspondence in a nutshell: Blackburn and her allies are hopping mad about the prospect of their big telecom donors having to compete with municipal networks or private companies partnered with municipal networks, and Chairman Wheeler is striking a measured, non-provocative tone while sticking to his guns on the need to restore local authority to increase competition. The qualifying phrase “the Commission will consider all relevant factual, policy, and legal issues presented” appears, by my count, eight times in Wheeler's four page letter. 

The Blackburn-Wheeler exchange stands in contrast to the response letter sent by Wheeler to Pennsylvania Democrat Representative Mike Doyle, which contains much of the same language and phrases but strikes a decidedly different tone. Chairman Wheeler apparently had no objections to Rep. Doyle’s pro-municipal network letter, and was in fact “heartened by [his] support for community broadband.” 

While the FCC rulemaking process sometimes seems like a black box, there are many political aspects to its decisions that extend into the public arena. Reading the tea leaves on exchanges like these between Congress and the FCC does not necessarily offer definitive answers, but it does appear to indicate that Chairman Wheeler is leaning in the right direction and may be willing to take the inevitable heat that a decision in favor of restoring local authority would bring.

Revisiting the Blackburn Amendment Debates

REMINDER - Today is the last day to file comments in the opening round of the FCC petitions of Wilson and Chattanooga. Information on how to file here.

Last month, we covered the progress of U.S. Representative Marsha Blackburn’s amendment to strip the FCC of its authority to restore local decision-making as its budget wormed its way through committee and into a larger appropriations bill. Her quest to keep state bans and restrictions on community networks in place (including in her home state of Tennessee, where Chattanooga EPB has filed a petition to start serving neighbors in need) is impressive for its boldness, if not its logical consistency. Impervious to many observers and commenters who noted her extensive financial support from incumbent telcos, she succeeded in passing the amendment on the House floor by a vote of 223-200.

The points raised by Representative Blackburn on the House floor in support of her amendment deserve some attention, as does the rebuttal offered by Representative Jose Serrano of New York’s 15 district, who rose against the amendment and in defense of the right of local communities to decide for themselves how to meet their broadband needs. Few of Blackburn’s arguments will surprise regular observers of the telco incumbent playbook, but there are some highlights that deserve special focus.

Rep. Blackburn based nearly her entire argument against FCC preemption on the idea that states are closer to the people than Washington, and that the FCC shouldn’t tell the local folks what to do:

“[Chairman Wheeler] wrongly assumes that Washington knows best, and forgets that the right answer doesn’t always come from the top down.”

“...Twenty states across this country have held public debates and enacted laws that limit municipal broadband to varying degrees. These state legislatures and governors have not only listened but have responded to the voices of their constituents. They are closer to the people than the Chairman of the FCC.  They are accountable to their voters.”

“...State governments across the country understand, and are more attentive to the needs of the American people than unelected federal bureaucrats in Washington.”

We could not agree more, Rep. Blackburn: the right answer does not always come from the top down. Which is exactly why state legislators and incumbent lobbyists should get out of the way and allow local communities to find their own answer for affordable broadband access. In his time on the floor, Rep. Serrano raised this point as well:

"Whatever happened to localism or local control? This amendment means the Federal Government will tell every local citizen, mayor, and county council member that they may not act in their own best interests. 

[Blackburn’s] amendment is an attack on the rights of individual citizens speaking through their local leader to determine if their broadband needs are being met."

Representative Blackburn also raised the specter of the “failed” UTOPIA network, and charged that the FCC would somehow force all states to do something similar:

“For example, look at the failed UTOPIA project, that has created massive disruption and is challenging taxpayers… That doesn't sound like a model the federal government needs to force against the wishes of state elected officials” 

No one is “forcing” any kind of municipal broadband model on any community; under preemption each community would simply be free to choose for itself. The unfortunate state legislators who may potentially see the federal government go “against their wishes” are in fact forcing a cable and telecom monopoly model on local communities. 

Rep. Serrano noted the example of Chattanooga EPB, where gigabit connections can be had by anyone for $70 per month from the municipal utility and potential customers are clamoring for service but are blocked by state law. He also rooted out the red herring of “forcing” a given model on anyone: 

“Preemption will not force anyone to do anything that the municipalities alone don’t want to do. This is not about forcing states to do anything, but instead stopping states from choking grassroots competition and stopping states from blocking faster networks or new networks where none exist.

“Broadband is something that we need to expand... It should be available everywhere, and it should be available in every possible place - rural, suburban, inner city, in homes, in schools. 

We have to build the infrastructure to make that happen.” 

Rep. Serrano also submitted several letters into the Congressional Record in support of FCC preemption, including those submittted by the U.S. Conference of Mayors and the Coalition for Local Internet Choice.

As important as it is to name and shame the politicians (such as Rep. Blackburn) who act on behalf of their corporate sponsors to undermine local communities, it is equally important to give credit where it is due. In this case, a pat on the back is due to Rep. Serrano, who took time on the House floor to point out some of the more ludicrous straw man arguments used by the anti-community network crowd. 

The full Congressional record of their exchange can be seen here (the relevant debate starts on page 6280). Youtube also has an edited video of Rep. Blackburn’s full floor statements from her own channel, where Rep. Serrano’s well-reasoned rebuttal is conspicuously absent.

FCC Releases Notice of Inquiry on Broadband Progress

Section 702 of the 1996 Telecommunications Act requires the FCC to report annually on whether "advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion." The FCC kicked off its tenth such report on Tuesday by releasing a "Notice of Inquiry," (NOI) in effect asking individuals and groups around the country to offer relevant data and comments. 

This process amounts to a kind of crowdsourced "State of the Union" on broadband issues. In addition to determining how many people in what areas have broadband access, this NOI also asks the critical question of how exactly the FCC should define broadband. The current definition of 4mbps download capacity and 1mbps upload may have been sufficient in the past, but isn't adequate for even recreational household use by many Americans today, let alone the demands of running a business and conducting commerce online.

This NOI also asks some arcane but important questions about other aspects of broadband definitions, including latency (the speed of data moving within a network, a different measure than bandwidth) and the widespread use of data caps and other policies in the telecom industry. 

Obviously the answers to all these questions have significant implications for municipal networks. Inadequate or overly-loose definitions of broadband allow incumbents to claim that they are providing excellent service to just about everyone in a given area, when that is often far from the truth. Many restrictive state laws limiting municipal networks, as well as federal grant programs that may support such networks, are based on whether an area is defined as already served or underserved, which may be dependent on FCC benchmarks. As is often the case in regulatory issues, the devil is in the details.  

FCC Chairman Tom Wheeler introduced the NOI with the following statement:

Congress has instructed us that all Americans should have access to robust broadband services, no matter where they live. Because consumers demand increasing levels of bandwidth capacity to support the applications they want to use online, we are asking if it is time to update the benchmark broadband speed. And as more people adopt faster broadband speeds, we are asking if all consumers, even in the most rural regions, should have greater access to better broadband. 

We here at ILSR believe the answer to both questions is a resounding "YES." The due date for initial comments is September 4th, and ILSR intends to make its voice heard.

Understanding the Wilson and Chattanooga FCC Petitions - Community Broadband Bits Podcast 110

Given the exciting development of the FCC opening comment on petitions from Wilson, NC and Chattanooga, TN to restore local authority to their states, Lisa and I decided to take over this week's podcast of Community Broadband Bits.

We talk about the petitions, some background, and interview Will Aycock from Wilson's Greenlight Gigabit Network and Danna Bailey from Chattanooga's EPB Fiber network.

We finish with some instructions on how you can comment on the record. The Coalition for Local Internet Choice also has commenting instructions and some sample comments.

Read a transcript of this show, episode 110, courtesy of Jeff Hoel.

We want your feedback and suggestions for the show - please e-mail us or leave a comment below. Also, feel free to suggest other guests, topics, or questions you want us to address.

This show is 22 minutes long and can be played below on this page or via iTunes or via the tool of your choice using this feed.

Listen to previous episodes here. You can can download this Mp3 file directly from here.

Thanks to Waylon Thornton for the music, licensed using Creative Commons. The song is "Bronco Romp."

ILSR Submits Comments to FCC on Protecting and Promoting the Open Internet

The Institute for Local Self-Reliance recently submitted comments to the FCC as part of its Protecting and Promoting the Open Internet proceeding. ILSR focused on the issue of paid prioritization, reclassification, and regulation of content. We also provided some examples of municipal networks that provide fast, reliable, affordable service and do not rely on paid prioritization to serve customers.

From the ILSR comments:

The FCC should be extremely wary of any arguments that claim paid prioritization or other discriminatory practices are necessary to increase investment in next-generation networks. These networks are already being built and paying for themselves in both public and private approaches (as well as partnerships mixing the two). ILSR sees no reason to believe any additional revenues gained by discriminatory pricing would be reinvested in improving DSL and cable networks as the largest firms operating these networks generally face little competitive pressure to upgrade. That is the problem, not a lack of revenue in the current model.

Our reading of the various court decisions suggest the only option for the FCC to preserve the open Internet and prevent big cable and telephone companies from tinkering with the established principle of non-discriminatory carriage is reclassification and urge the FCC to take this step. However, we also urge the FCC to take actions to prevent any regulation of content. The FCC should concern itself with the transmission of information, regardless of what that information is, consistent with long-held Internet principles.

The Open Internet proceeding has inspired an estimated 1 million+ comments. The outpouring strained the FCC's system and as a result, the FCC extended the comment period to July 18th.

The full document is available below for download and available on the FCC's electronic filing system.

The FCC Is Our Best Shot to Restore Local Authority

For the first time in many years, we have an opportunity to repeal some particularly destructive state laws limiting investment in community networks. To be clear, this is our best shot. I've already covered the background and offered a blanket encouragement for you to post comments.

Chairman Wheeler has been looking for an opportunity to expand local authority by removing state laws that limit investment in Internet networks. The cable and telephone companies are marshalling their considerable forces to stop him. But we can, and must help.

We have spent years analyzing these state barriers for ways to restore local authority. The FCC, using its Section 706 power, is our best shot. The carriers have far too much power in the state capitals, which means that even when we have public opinion squarely on our side, the carriers easily kill state bills to restore local authority.

Anyone who thinks we have a better shot at rolling back state barriers individually in the states rather than with this FCC is wrong. Really wrong. Between Art Pope and Time Warner Cable lobbyists, there is no hope for any legislation that would threaten cable monopolies in North Carolina.

These petitions on municipal networks are not some FCC smokescreen related to the network neutrality proceeding. In fact, we at ILSR remain publicly frustrated with the FCC's failure to act more strongly in protecting the open Internet. But Chairman Wheeler, for reasons that seem somewhat personal to him, is particularly motivated to remove the anti-competitive laws passed by big cable and telephone company lobbyists. It strikes a chord with him and I, for one, am glad to see him taking action on it.

Anyone who claims action on municipal networks is some sort of trade for giving up on network neutrality is, once again, really wrong. For one thing, a trade requires two parties and I have yet to identify a single entity that would trade meaningful open Internet protections for rolling back a few barriers to municipal networks. Haven't found one. Not even us.

Further, restoring local authority on municipal networks is not a trade for the FCC later preempting local authority over the rights-of-way because once again, no one is ready to take that deal. Advocates of local decision-making authority tend to oppose preemption as a matter of course.

In the case of the current FCC proceedings, it must be noted that the FCC is actually being asked to preempt preemption, which is to say the principle remains that local authority should be respected. The FCC will remove state restrictions on local authority; no community will be required to take action it prefers not to.

This is a key opportunity. The FCC's Section 706 Authority allows it to remove barriers investment. No one is talking about creating new regulations.

For those still skeptical about these petitions, let me suggest this: If this is all some elaborate game of 3D chess masterminded by FCC Chairman Tom Wheeler, let's call him on it. Let's assemble a great record of how local governments can increase investment in next-generation services and states should not revoke their authority to decide for themselves how to invest or partner to improve and expand Internet access. In the worst case scenario, we will have compiled a great case for our position.

The Coalition for Local Internet Choice has posted instructions on how to file. File anytime between now and August 29. We are still working on a resource with recommendations and such for MuniNetworks.org and will publish them soon.

Chattanooga Will Ask FCC to Preempt State Barriers in Tennessee

Since January, when the DC Circuit Court of Appeals suggested the FCC has the authority to preempt state anti-muni laws, local communities have publicly supported the notion. Chattanooga's Electric Power Board (EPB) will join those communities when it petitions the FCC to preempt similar laws in Tennessee, reports The Center for Public Integrity.

Danna Bailey, vice president of corporate communication at EPB recently told The Center:

“We continue to receive requests for broadband service from nearby communities to serve them,” Bailey said. “We believe cities and counties should have the right to choose the infrastructure they need to support their economies.”

Chattanooga, one of the publicly owned networks that have inspired FCC Chairman Tom Wheeler, has proved itself as a strong economic development tool. According to the article:

A day after his meeting with Berke, Wheeler wrote in his blog, “I believe that it is in the best interests of consumers and competition that the FCC exercises its power to pre-empt state laws that ban or restrict competition from community broadband. Given the opportunity, we will do so.”

A number of other communities with municipal networks, or in the process of deploying them, have passed Resolutions that support the FCC:

In addition to communities with firsthand experience, the American Public Power Association (APPA) also passed a Resolution in June, urging Congress, the FCC, and the Obama Administration to unequivocally support:

…the ability of local governments, including public power utilities, to provide advanced communications services that meet essential community needs and promote economic development and regional and global competitiveness. 

The U.S. Conference of Mayors passed a similar Resolution at its annual meeting in June, which read:

BE IT FURTHER RESOLVED, that the US Conference of Mayors recommends that the FCC preempt state barriers to municipal broadband service as a significant limitation to competition in the provision of Internet access.

Soon after, a coalition from the National Association of Telecommunications Officers and Advisors (NATOA), the National League of Cities (NLC), and the National Association of Counties (NACo) joined together for a letter of support to Chairman Wheeler:

The importance of Internet choice at the local level has never been more important. In many places in the U.S, locally-driven projects—including innovative partnerships with private sector companies—have demonstrated that local creativity and local authority is a viable means by which new next-generation broadband infrastructure can emerge.

Fortunately, support is also coming from DC. In late June, a collection of Senate and House Members penned a letter to Chairman Wheeler, asking him to take action and begin the process. In a statement fully supported by the Institute for Local Self-Reliance, the Members wrote:

Communities are often best suited to decide for themselves if they want to invest in their own infrastructure and to choose the approach that will work best for them. In fact, it was the intent behind the Telecommunications Act of 1996 to eliminate barriers to entry into the broadband market and promote competition in order to stimulate more innovation and consumer choice. We urge you and your colleagues to utilize the full arsenal of tools Congress has enacted to promote competitive broadband service to ensure America’s communities obtain a 21st century infrastructure to succeed in today’s fiercely competitive global economy.

Local communities, regional coalitions, and federal leadership all recognize the importance of local Internet choice. The country is ready for the next step, Chairman Wheeler. We support you!