FCC Outlines Plan To Crush Awful State Protectionist Broadband Laws
from the it's-about-time dept
On the same day the FCC voted to approve new net neutrality rules, we noted that the agency took steps on an issue that might actually be more important: municipal broadband. While net neutrality rules are designed to protect consumers from a lack of last-mile competition, the agency's moves on municipal broadband are intended to actually strike at the issue of limited competition at the root. As we've noted a few times, ISPs (with ALEC's help) have passed laws in twenty states preventing those towns and cities from deciding their own infrastructure needs for themselves.It's pure, unabashed protectionism: the bills do little more than protect regional duopolies from change while hamstringing local communities desperate for better service. Usually the laws are passed under the auspices of protecting taxpayers from themselves, ignoring that the bills' sole purpose is to protect duopoly revenues. Petitioned by muni-networks in Tennessee and North Carolina that have been blocked from expanding, the FCC plans to use its authority to preempt the protectionist portions of these awful laws.
In much the same way the municipal broadband issue was overlooked on vote day, so too was the actual plan when it was released alongside the agency's new net neutrality rules last week. The full Memorandum Opinion and Order (pdf) clarifies that the FCC intends to use Section 706 of the Telecommunications Act of 1996 to preempt state laws that conflict with federal regulation of interstate commerce for the good of local communities. The agency lists five legal principles it claims give it the right to put these protectionist laws out to pasture:
Unsurprisingly, the broadband industry isn't particularly happy that the FCC has woken up from a decade-long coma on this issue and is finally addressing these ISP-constructed obstructions. Marsha Blackburn, flush with broadband industry campaign cash, has been busy fighting the FCC's push under the pretense that she's just ultra worried about states' rights (that protectionist law written by corporations crushes local rights en masse isn't, apparently, a worry). As such she's introduced a law (that has no chance of passing) aimed at gutting FCC authority.Article I, section 8 of the Constitution gives Congress the power to regulate interstate commerce.
Internet access unquestionably involves interstate communications, and thus interstate commerce. Broadband subscribers pay for the right to go to any lawful destination on the Internet, wherever located.
Congress has given the Federal Communications Commission the authority to regulate interstate communications. Indeed, section 1 of the Communications Act of 1934, as amended (Act), specifically gives the Commission jurisdiction over “interstate and foreign commerce in communication by wire and radio."
The Commission has previously exercised its authority to preempt state laws that conflict with federal regulation of interstate commerce, for example with respect to state regulation of VoIP, the deployment of wireless facilities, and its order prohibiting local franchising authorities from unreasonably refusing to grant competitive cable franchises. These preemption decisions all further competition.
Finally, section 706 of the 1996 Act directs the Commission to take action to remove barriers to broadband investment, deployment and competition. There is no question that provisions of the state laws in question do limit broadband deployment — they expressly prohibit Wilson and Chattanooga from providing broadband services to more people in more places, even places where there is no broadband currently available
ISPs have also threatened to sue, but given AT&T and Comcast's interests in getting their mergers approved -- and Verizon busy trying to kill the net neutrality rules -- they may find it a bridge too far to open up an entirely new legal fight. Then again, one of the benefits of duopoly power is the extra income necessary to help pay to keep things that way.
The best way for the broadband industry to stop towns and cities from getting into the broadband business? Provide better service. These towns and cities aren't getting into the business because it's fun or because they're mean and want to make Comcast's CEO cry. They're doing so because they've spent a decade in the firm grasp of utterly apathetic monopolies and duopolies, and they're refusing to take it anymore. And while there are certainly plenty of examples of federal overreach, in this instance the FCC finally helping them is a good thing.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: broadband, competition, fcc, muni broadband, municipal broadband, rules
Reader Comments
Subscribe: RSS
View by: Time | Thread
$$talk$
[ link to this | view in chronology ]
Re: $$talk$
[ link to this | view in chronology ]
Re: Re: $$talk$
(I've seen examples of some of the flyers online, and I am only slightly exaggerating)
They promise all of the wonderful things they COULD do but will not if the muni builds out. Annnd a couple free months of HBO thrown in and boom a bill protecting their monopoly and doesn't require them to live up to any promises.
Cut to a couple months later where people figure out they were lied to and somehow they actually got worse service now. (Cuts had to be made to recoup the cost of the advertising blitz, and once they made back that money they noticed they liked having more money and looked for more things to cut).
[ link to this | view in chronology ]
Re: Re: Re: $$talk$
I remember AT&T and Comcast used very similar tactics in St. Charles and those other Illinois communities that were considering it.
[ link to this | view in chronology ]
Re: Re: Re: Re: $$talk$
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: $$talk$
It works because we can't see outside of ourselves.
My current favorite example is 3 people at a table representing rich, middle, poor. There are 12 cookies. Rich takes 11 cookies and tells middle the poor guy is gonna take his.
[ link to this | view in chronology ]
Re: Re: Re: $$talk$
Wait a minute...municipal broadband will raise the dead? That's awesome. It even negates the first issue, because if we can raise the dead kids, no harm, no foul!
Er, never mind, I got distracted. Your point is valid =).
[ link to this | view in chronology ]
Considering the coma may have been maintained by a constant injection of ISP cash one has to wonder if some Verizon employee at the Bribe-Team.. Ahem, Government Relations team has made one of these mom-jokes and Wheeler took offense (remember, he's an ex-ISP representative). Verizon because they seem to be the ones that shot themselves in the feet with more frequency.
Verizon employee (VE): Hello Mr Wheller, here's your cash.
Wheeler (W): Thank you, minion. I'll buy some stuff to my mom, her clothes aren't fitting anymore.
VE: *giggles* So it's one of those "your mom is so big that if I paint an H in her back a helicopter may try to land on her" issues, no?
W: ..............
VE: Oh crap. Would it help if I said it was just an innocent joke?
W: ..............
Next day: FCC announces it will move forward with Title II reclassification.
[ link to this | view in chronology ]
Re:
I actually think the thanks goes to John Oliver and the Dingo bit. Not only did he attract everyone's attention to the issue (causing a lot more people to write FCC complaints,) but he also riled up Wheeler to prove him wrong.
I really wish HBO would kick Apple out and open HBO Now up to everyone....I'd love to pay $15/mo just to watch John Oliver's show.
[ link to this | view in chronology ]
Re: Re:
Me too; I'd gladly pay for Last Week Tonight if they'd let me.
[ link to this | view in chronology ]
Re: Re:
You'll get you wish. Apple's deal is a limited time thing, the plan is that it will be available on all devices once the exclusivity period expires in 3 months.
[ link to this | view in chronology ]
They really introduced this "lawful" thing everywhere? That doesn't smell right. It seems done on purpose - like they already had the intention of blocking some stuff.
[ link to this | view in chronology ]
It's easier on the people if one of the many things in life they didn't have to worry about was their cable internet. If you are given only a single choice of our wonderful internet providers, it makes it a much less stressful decision and leads to more time doing the more important things. They'll make sure everything is taken care of so that you can spend more time with your families.
When there is only one provider, you can rest assured they'll provide you with the best possible service in your area.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
I agree. We should ban all restaurants with any choices on their menus. Hell, ban any restaurant that doesn't serve soilent green, since having restaurants that serve different types of foods causes too much choice. In fact, lets just set up a system where a single provider bids on each area to be the incumbent restaurant, incumbent supermarket, etc.
I hate going to a restaurant that has too many choices on their menu...it makes me take considerable time out of my busy life choosing what I want to eat.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
You do realize that I was being sarcastic, right?
I was sloping some more sarcastic on top of the parent's sarcasm.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
That's right! Work hard and reproduce like a good little drone. Don't be distracted from your duty. Forsake comfort, pleasure, joy, or anything else that might cause you notice that there's more to life than work and making new workers.
[ link to this | view in chronology ]
Weird...
Why should any company get government protection from competition, especially if it seems to simply foster incompetence and poor service?
[ link to this | view in chronology ]
The other problem with this idea is anyone thinking it might motivate the players to step up their game.
Given all of the cash they have been paid already (and sweetheart deals) they have proven they will just take the money and walk away scot-free. They have proven themselves to be untrustworthy, and willing to outright lie.
They need to face actual competition, and the only players who can even get on the field are municipalities. People will discover pretty quickly that you can have much more than the old guard wants to offer, at better prices. If the old guard doesn't want to adapt, they will fall and soon there will be new players to replace them as more stupid rules locking out competition fall to the pages of history.
[ link to this | view in chronology ]
Re:
This is a bit tough to argue. Lots of municipal broadband implementations have been dismal failures. The big broadband players are not totally wrong when they argue that they can do it better and faster and have a proven track record. What they are leaving out is how they treat their customers once they are in place.
I live in one of the wonderful areas in which there is only one broadband provider (Comcast) because AT&T pulled their dsl and U-Verse is not available where I live. While I would be happy to try a municipal option, I would be terrified that my city would actually be worse than Comcast in customer non-service. I really do think it is an important option to have, but to me it is like salting a turd - it's still going to taste like a turd.
[ link to this | view in chronology ]
Re: Re:
... of taking massive amounts of money and/or tax breaks in exchange for promising excellent service and networks, doing nothing for years until the deadline starts approaching, and then doing everything they can think of to get out of actually having to fulfill their side of the bargain.
Yeah, you're right, they do indeed have a proven track record, and it's not that great.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
They demand laws saying they MIGHT come into town so no muni systems... then leave them bereft.
Even shitty muni service gives you the ultimate power for consumers, "Comcast you suck I'm going with my other option". Comcast might actually give better service if people can leave them for another provider.
We just had some idiot running a cable system who wants to drop people who DARE to try and get the best price possible by threatening to switch providers. When you feel you no longer need customers and don't need to compete... a real business would fold if not propped up by laws protecting them from the real world where if you are a shitty provider you fail.
And if the muni-system fails, gee the whole town is wired what to do what to do. Lease it to an upstart to recoup the buildout?
[ link to this | view in chronology ]
Re: Re:
I'd like to see the evidence that they're right when they claim this, though.
[ link to this | view in chronology ]
Re: Re:
Apparently Comcast and the like have us so well-conditioned to accept the crap they offer (and their ever-increasing prices) that we're terrified of leaving for fear something else might be worse.
It's almost like an abusive spouse who's convinced his target to stay in the abusive relationship, because it's rough out there in the world and at least here you know what to expect and there's a roof over your head.
(P.S. I don't mean in any way to trivialize domestic violence, which is obviously a far more serious problem.)
[ link to this | view in chronology ]
Have the municipalities seize the infrastructure (eminent domain, maybe?) and let Telcos/ISPs submit bids to manage the network for 1-2 years. If they provide good service, the management contract can be renewed and they can continue to provide service. If not, they're out, and new companies can bid for the management contract.
This would allow for some serious competition, as new companies wouldn't have to invest massive amounts of money for their own network buildout.
This could be done for other public utilities as well.
[ link to this | view in chronology ]
Worried about states' rights?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Every time I try to parse that sentence, my brain throws an exception.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
"These towns and cities aren't getting into the business because it's fun"
and
"or because they're mean and want to make Comcast's CEO cry"
just be:
"These towns and cities aren't getting into the business because it's fun"
[ link to this | view in chronology ]
Dead on Arrival
In the U.S. the local governments are literally creatures of the states not the National Government. Unless a particular state's constituition limits the power of that state's legislature/executive, the state can do anything they want with or to cities, counties, towns, villages etc. If a state law prohibits/controls local government providing broadband, that is the governing legal authority. Nothing in the cited FCC text repeals or could repeal the Ninth, Tenth and Eleventh Amendments, nor does it overturn Supreme Court decisions concerning state sovereignty.
This oopsie was one of the early screwups in the Obamacare law. The Supremes have already said 'Nope'.
Mind you, if a state tried to order cities to provide broadband, THEN the FCC could prohibit interstate connections if it wanted to; but the Feds can't REQUIRE it, or overturn state control of the local governments prohibiting it.
As much as Comcast/TWC disgusts me, the only way to fix their sorry ...ahm service, is to fix the state governments. Sigh. One state at a time.
For real: If you really want to fix this, find out who your state reps are and go talk to them. Yes. Really. Explain why local broadband is a good thing for their district.
Even better, every one of those reps has a >LOCAL
[ link to this | view in chronology ]
Dead on Arrival
In the U.S. the local governments are literally creatures of the states not the National Government. Unless a particular state's constituition limits the power of that state's legislature/executive, the state can do anything they want with or to cities, counties, towns, villages etc. If a state law prohibits/controls local government providing broadband, that is the governing legal authority. Nothing in the cited FCC text repeals or could repeal the Ninth, Tenth and Eleventh Amendments, nor does it overturn Supreme Court decisions concerning state sovereignty.
This oopsie was one of the early screwups in the Obamacare law. The Supremes have already said 'Nope'.
Mind you, if a state tried to order cities to provide broadband, THEN the FCC could prohibit interstate connections if it wanted to; but the Feds can't REQUIRE it, or overturn state control of the local governments prohibiting it.
As much as Comcast/TWC disgusts me, the only way to fix their sorry ...ahm service, is to fix the state governments. Sigh. One state at a time.
For real: If you really want to fix this, find out who your state reps are and go talk to them. Yes. Really. Explain why local broadband is a good thing for their district.
Even better, every one of those reps has a LOCAL political party/committee. Go talk to them, explain why they should push for local broadband.
And no, you don't need big money (or otherwise broadband is the least of your government problems).
PS: DON'T SEND SOMEBODY AN EMAIL, and expect that to be it. Get on the phone. Actually go visit them in the actual physical corporality.
J.G.
PPS: Preview is your friend. Oops.
[ link to this | view in chronology ]
Funny thing on the way to GoogleFiber
[ link to this | view in chronology ]
Re: Funny thing on the way to GoogleFiber
[ link to this | view in chronology ]
Re: Re: Funny thing on the way to GoogleFiber
[ link to this | view in chronology ]
Re: Re: Re: Funny thing on the way to GoogleFiber
[ link to this | view in chronology ]
Re: Re: Re: Re: Funny thing on the way to GoogleFiber
[ link to this | view in chronology ]
WHO Changed the FCC?
Then somewhere along the way, they scrubbed their mission statement and the whole thing became about cheap phones. with at least two (I counted) mission statements, both of which were FASCIST based, instead of in the public interest. It literally made their mission statement somewhere along the lines of you have free speech with your mobile phone. That's what these Socialist Marxists TRADED the 1st amendment for.
Nobody questioned it. They just wanted a cheap mobile that when you pop it open it connected to that original motorola-lockheed-mitsubishi-at&t system and that doing so was dirt cheap.
But if you audit the FCC, you find they have NOT managed the public spectrum very well, as most of the public spectrum is being used up by corporate owned interests. With very little PEG programming.
I believe this is because the FCC has the POTUS connections.
But it don't matter what I believe, as they have a bad case of MISSION CREEP and have expanded into our CAT 5's now which is totally horse dung as far as I am concerned as they already have a history of FAIL with power and frequency. But you probably love your net neutrality whatever the hell that is. Meanwhile your CAT 5 emissions will be regulated. And I am sure that regulation while maybe not today, but tomorrow their vision for this regulation will be to FILTER your CAT5 emissions.
My solution is
1. To Change the FCC board's CONTROL.
2. and the FCC's policy on Commercial interests operating on the Public Spectrum.
SO with 1, I want the PUBLIC to vote for what the BOARD used to tell the engineers. In other words, your going to decide, if BPA should be allowed to knock out ham radios. You'll decide how many patterns can be used in spread spectrum. You will decide if someone on 10 meter can use their equipment on 11 meter. You will decide if ABC keeps their frequency allocation. The network's PUBLIC FILE situation WILL BE upgraded to be available online. IF you want to bitch about your local station to the FCC, you simply load fcc.gov and bitch and it GOES IN their public file.
Anyway, I ain't thinking inside YOUR boxes here. These are MY thoughts on the matter. They take a different approach to the entire snafu. One that HEALS everything ultimately.
Power and frequency ought to be regulated fairly (by the People) and with common sense (logic) and guided by SAFETY (FCC EMISSIONS so you don't burn your god damn eyes out), beyond that no human has a right to cut everyone else off for any reason, with the ONE EXCEPTION OF .GOV since they have to have their freq's civil and military to operate, but that will only be 2% of the total Freqs -imo, you could even ROUND IT UP to 4% or 6% safety factor. I mean come on, there's an entire freaking spectrum here, and we just started using these newer emission digital signals on it.
Anyway, my bottom line point is the FCC currently is controlled by the WhiteHouse/POTUS, that needs to change immediately.
Please, Consider what I say. It's probably the NICEST way I ever explained it with out going completely ape shit angry cussing about commie oath breakers ;o)
[ link to this | view in chronology ]