White House Finally Takes Aim At A Decade Of Ridiculous Protectionist State Community Broadband Laws

from the get-the-hell-out-of-the-way dept

Wed, Jan 14th 2015 10:30am — Karl Bode

For many, many more years than I'd like, I've argued that if we want to even begin to fix U.S. broadband, we need to start by taking a look at the awful, protectionist laws passed in nearly two-dozen states that hinder or outright ban communities from improving their own broadband infrastructure, even in cases where private industry has refused to. These laws, in nearly every instance written by ISP lawyers, also frequently hinder towns and cities from cooperating in public/private partnerships in areas particularly harmed by broadband market failure. They're often passed under the pretense that companies like Comcast, AT&T, CenturyLink or Time Warner Cable are just extra super worried about the American taxpayer.

For the second time in as many months, Obama has again poured a little gasoline on the FCC and a hot-button broadband conversation topic after belatedly calling for Title II reclassification back in November. This week The White House released a report (pdf) throwing the President's full support behind a push to kill off these awful laws, while pressuring the FCC to do the same. The report highlights how community broadband is the perfect tonic for market failure, and a great place to start in terms of improving lagging, uncompetitive U.S. networks:

"In markets where private competition is anemic, whether because of regulatory barriers to entry or the high fixed costs of infrastructure investment, town and cities can build their own middle-mile networks and offer competitive access to the private sector, as Scott County, MN has done. Or municipalities can provide service directly to consumers, like in Chattanooga, TN. In either case, municipalities are creating more choices for consumers, fostering competition and creating opportunities for economic growth. Municipal broadband is often a logical choice for towns and cities that are already served by a municipal electric utility, since infrastructure costs can be shared across those two services, just as private cable companies leveraged their networks to provide Internet service."

Back in July, FCC boss Tom Wheeler responded to petitions from several community-run ISPs (pdf) by stating the agency would be taking a long, hard look at these state laws as part of their mandate to ensure broadband is deployed on a "reasonable and timely basis." That's why, as we've been noting, the FCC has been amping up efforts to show this simply hasn't been happening. Wheeler, bucking expectations of fealty to his lobbyist past, has been highlighting frequently how roughly two-thirds of the country is unable to get more than one ISP that can provide speeds of 25 Mbps or higher.

Ignoring their own failures, ISPs and hired friends are quick to point out the municipal broadband projects that haven't worked (because like any business plan, some don't work), while ignoring areas (like Chattanooga, TN, Wilson, NC or Lafayette, LA) where these efforts are not only paying great dividends, they're motivating incumbent ISPs to improve their services. Opponents of these projects like to ignore the most salient point of all: communities wouldn't be getting into the broadband business if the existing market was working. If at any point in the last fifteen years these folks really wanted to stop these efforts, they could have improved services. Instead, they've taken the cheaper route: lobbying, lawsuits and disinformation.

After Wheeler's latest comments, Incumbent ISPs threatened to sue if the government dares to dismantle their state-built empires of protectionist legislation. Because the justification for eroding local rights is fundamentally weak at its core and an ugly PR move, they've often waged this battle under the guise of states rights, using groups like The National Conference of State Legislatures to do the threatening for them. They've also had folks like Rep. Marsha Blackburn to similarly complain that the government is telling states what to do (you'll notice that letting giant companies write telecom law that hurts these same communities is just fine, however).

That's been a successful ISP tactic in this conversation for years: turn this into a bitter partisan issue. It's simply not. Nobody but Comcast and AT&T benefit from letting Comcast and AT&T write state law that tramples local rights. In fact, protecting these rights is supposed to be one of the cornerstones of Conservative values. Yet for fifteen years now I've watched as ISPs and their friends incoherently defend these protectionist bills as if they were defending some lofty patriotic ethos, resulting in this debate descending into the kind of bobble-headed partisan bickering this country has made its chief export. That's started to change in the last few years, thanks to projects like Google Fiber. Google Fiber has placed a spotlight squarely on the lack of broadband competition, and has inspired countless communities to realize we really can do better than the stumbling, bumbling duopoly we all know and love.

Unfortunately, beyond giving the FCC some political cover and providing some online guidance to communities, the President's plan isn't much of a plan, especially if we can't start dismantling these state laws. Nineteen are in place now and more are being passed every year; AT&T and friends are currently pushing yet another law in Missouri aimed at protecting their uncompetitive fiefdoms from, well, you. While the President's announcement is a welcome start, here's to hoping we don't have to sit through another decade of lobotomized partisan pattycake before finally putting these destructive and ridiculous state laws to bed.

Community Based Broadband Report by Executive Office of the President (PDF)Community Based Broadband Report by Executive Office of the President (Text)

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Filed Under: broadband, competition, fcc, muni broadband, municipal broadband, net neutrality, obama administration, state laws, tom wheeler

17 Comments

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Anonymous Coward, 14 Jan 2015 @ 11:25am

The cynic in me says this turnaround in the last two years of Obama's administration are nothing more than bullshit pandering. He's a lame duck and knows it, so it's time to propose things he knows have no chance of getting passed so he can use these proposals to stock up on finger pointing credits for his potential successor.

Seriously, why didn't he do any of these things (title II, free community college, community broadband) in the beginning? Why now when the stakes are low, and the chances at success even lower?

I think i answered my own question.
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Anonymous Coward, 14 Jan 2015 @ 11:33am

It seems that the administration realized that being on the "pro internet" side of the debate and baiting congressional Republicans to be on the opposite side of the debate is a great way to assure that young voters stick with the party and actually get out to vote in 2016. If there is one thing young voters care about after all, it's their internet.
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Anonymous Coward, 14 Jan 2015 @ 12:05pm

It's too bad they had to wait until it almost becomes illegal to do anything on the Web. The last time he grandstanded on Internet freedom, it was between signing ACTA and killing Megaupload. This time, it's around the same time he's pushing CISPA, rushing TTP/TTIP through a congress that doesn't even like him, taking advantage of recent disasters to assume even more power and control, and watching the corporate shills he put in key positions kill the Internet we once took for granted.
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Anonymous Coward, 14 Jan 2015 @ 12:08pm

'here's to hoping we don't have to sit through another decade of lobotomized partisan pattycake '

if there was a law that stopped politicians from being given payments, in any way, shape or form, for any reason, there would be much more competition in industries and not just the broadband one. unfortunately, there have been too many instances where businesses have been able to get particular laws in place that they wanted so as to be able to cover what they wanted or to stop others from having what they wanted, then foiling the plans already under way or wished for or whatever. the world knows that the USA is the worse of a bad bunch and there is nothing that a few dollars wont achieve when thrown in the right direction. why else would politicians remain in office for as long as possible, shit backwards when there is a possibility they may lose their position and already have made the 'revolving door' available to cover the exit when needed?
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Anonymous Coward, 14 Jan 2015 @ 1:02pm

Re:
The other thought to this is why politicians would spend more on an election campaign than they will get out of the salary for the office. Truth is nearly all of congress doesn't need the salary as they are already wealthy. Making laws that tax the wealthy is making laws that tax themselves.
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Timothy Karr, 14 Jan 2015 @ 1:35pm

Commissioner O'Reilly doesn't like it
He issues a statement blasting the very idea of communities having the right to create their own local networks:

http://www.fcc.gov/document/commissioner-oriellys-statement-municipal-broadband

O'Reilly hates regulations except for those that threaten phone and cable monopolies over Internet access. Those are regulations this anti-regulatory commissioner can really get behind.
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John Fenderson (profile), 14 Jan 2015 @ 2:44pm

Re: Re:
That's right. On the scale of things, congresspeople don't actually make that much money in salary. The base salary is $174,000, and when you add in all the value of the various benefits, this comes out to around $285,000. That's damn good pay by normal people's scales, but is peanuts by the scales of the wealthy and is certainly not the reason that anyone wants to be elected to congress.

I think the real reason most congresspeople want the job is one (or more) of three things: an honest desire to engage in public service, an honest desire to gain political power, and an honest desire to rake in the big bucks as a lobbyist/consultant after they leave office.
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John Fenderson (profile), 14 Jan 2015 @ 3:03pm

Re: Commissioner O'Reilly doesn't like it
The funniest quote from that memo:

In reality, this debate is about preempting a state’s right to prevent taxpayer rip-offs. Municipal broadband has never proven to be the panacea that supporters claim and the Administration now boasts. Instead, we have seen a long track record of projects costing more than expected and delivering less than promised.

He completely ignores the long track record of taxpayers being ripped off by private broadband providers such as Comcast, so he's making a very weird argument here. If he wants to argue from a taxpayer ripoff perspective, then he needs to show how municipal broadband is a larger ripoff than private. I doubt he can.
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Coyne Tibbets (profile), 14 Jan 2015 @ 5:24pm

Use it or lose it
I've though that this should be handled through a "use it or lose it" law. The broadband providers have argued for years that communities shouldn't "compete" with them by doing their own broadband.

The response should be a law giving the broadband companies until a moratorium date to establish broadband service. For example, "Commercial providers have until Jan 1, 2018 to provide broadband in all communities of 5,000 or more people. If no provider has done it for a given community by then, it is presumed commercial providers are not interested and the community will be allowed to provide it themselves."

In other words, commercial providers need to stop delaying. They can have their cake, but only if they're going to eat it. We've been protecting them for 15 years now; it's time they proved their interest in pursuing the opportunity.
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Anonymous Coward, 14 Jan 2015 @ 7:04pm

Re: Re: Re:
Honest desire to insider trade to their hearts content and front-run the markets while they're doing it?
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Leit, 15 Jan 2015 @ 12:50am

Re: Use it or lose it
Giving them time to implement just gives them time to lobby for extended deadlines. Sure, it's better than the present "in perpetuity" scheme, but in practical terms it's likely to turn out exactly the same way.

Let 'em compete without a head start.
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Rob (profile), 15 Jan 2015 @ 2:01am

I live in Scott County, MN which was mentioned as an example in the article, and despite being a rural area with a few small towns and a lot of farms, we have one of the best broadband options in the state.

I get fiber broadband from a small, local ISP that provides a very consistent 90+Mbps down/40 up, not to mention great customer service. I pay about the same price I used to pay Comcast for their shitty throttled broadband plan featuring dns hijacking and the worst customer service in the country.

It's not gigabit, we're still a long way from that, but it is ridiculously better than what we'd have otherwise. It's fast enough that I cut the cord over a year ago and put a Roku in each room, and I have never experienced a single issue with bandwidth despite often streaming multiple 1080p shows at once from different rooms on top of all the tablets, phones, xbox, pc's, etc.
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That One Guy (profile), 15 Jan 2015 @ 4:37am

Small change:
Given they've been getting perks and paydays thanks to the taxpayers for years now, and utterly failing to live up to the promises they make in order to get those perks and paydays, I say drop the date to Jan 1, 2015, and then hit them with massive fines until they fulfill their promises, or pay back the money that was granted them.

I see no reason that they should get three more years of money and legal perks, allowing them even more time to wiggle out of any deals or promises they've made, I say hit them hard, and hit them now, they more than deserve it.
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nasch (profile), 15 Jan 2015 @ 10:45am

Re: Re: Commissioner O'Reilly doesn't like it
Instead, we have seen a long track record of projects costing more than expected and delivering less than promised.

Isn't that true of every type of government program? Is he in favor of banning municipal transit projects too? Those often overspend and underdeliver.
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nasch (profile), 15 Jan 2015 @ 10:48am

Re: Use it or lose it
"Commercial providers have until Jan 1, 2018 to provide broadband in all communities of 5,000 or more people. If no provider has done it for a given community by then, it is presumed commercial providers are not interested and the community will be allowed to provide it themselves."

Then they'll deliver the worst possible service that barely meets the definition of broadband, accompanied by high prices and terrible customer service. And the cities won't be able to offer their own broadband because they said they wouldn't. Better to just go ahead and do the municipal project (where it isn't banned) and let the incumbents figure out how to compete.
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John Fenderson (profile), 15 Jan 2015 @ 2:35pm

Re: Re: Re: Commissioner O'Reilly doesn't like it
"Isn't that true of every type of government program?"

There are actually many government programs (maybe most of them) that deliver what's promised for the cost that is promised. They just don't get get reported on since that's not newsworthy.
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nasch (profile), 15 Jan 2015 @ 5:05pm

Re: Re: Re: Re: Commissioner O'Reilly doesn't like it
My point is that it's a red herring. He's not objecting because of the track record of failure of municipal broadband, that's just a convenient excuse.
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