Tennessee Voraciously Defends Its Right To Let AT&T Write Awful State Broadband Laws

from the ill-communication dept

Wed, Sep 30th 2015 11:44am — Karl Bode

After fifteen years in an apparent coma, earlier this year the FCC woke up to the fact that ISPs were effectively paying states to pass laws focused entirely on protecting uncompetitive, regional broadband duopolies. More specifically, they've been pushing legislation that prohibits towns and cities from improving their own broadband infrastructure -- or in some cases partnering with utilities or private companies -- even in areas local incumbents refused to upgrade. It's pure protectionism, and roughly twenty states have passed such ISP-written laws nationwide.

While it received less press attention because it happened on the same day as the net neutrality vote, back in February the FCC voted to start pre-empting some of these state laws because they run contrary to the FCC's Congressionally-mandated mission of improving broadband access to all (not to mention, common sense). This, not too surprisingly, riled up all of the telecom companies' ~~paid~~ loyal supporters in Congress, who, like Marsha Blackburn, immediately started whining and pretending this was a states' rights issue (you'll note that letting your local incumbent cable and phone company literally write state law is perfectly fine, however).

In March, the state of Tennessee sued the FCC, again framing the state's decision to cozy up to telecom giants as a states' rights issue, and claiming the FCC violated federal law and overstepped its authority. Tennessee state law, pushed for by AT&T, has stopped Chattanooga-based EPB from expanding broadband services into additional areas. The FCC's attempt to thwart this god-given protectionist effort, Tennessee claimed this week in a new court filing, violates Tennesee's "inviolable right to self-governance":

"In a brief filed Friday in a federal appeals court, Tennessee argued that states have an "inviolable right to self-governance," which means that a state may delegate powers to its political subdivisions—i.e. cities and towns—as it sees fit..."Far from being a simple matter of preemption, as the FCC claims, this intervention between the State and its subordinate entities is a manifest infringement on State sovereignty," Tennessee's lawyers wrote Friday.

In other words, Tennessee argues, it's completely within its right to let AT&T write shitty telecom law that ensures Tennessee remains a broadband backwater, and the federal government has no standing to intervene in this noble effort. In contrast, the FCC has argued that Section 706 of the Telecommunications Act of 1996 directs the FCC to take action to remove barriers to broadband investment, which is precisely what ~~AT&T~~ Tennessee's law is. Tennessee's motivation here is to ensure they can keep gobbling up AT&T and Comcast campaign contributions without federal interference. The FCC's motivation here (contrary to years' past), is to actually bring better, cheaper broadband to more people.

The courts could rule either way, but the FCC will get its chance to respond to Tennessee in a filing expected by November 5. Meanwhile, Tennessee residents can rest easy knowing their taxpayer dollars are not only being used to prop up AT&T's crappy, stagnant broadband empire -- but to thwart efforts to actually bring broadband competition and lower prices to the state.

Tenn Muni (PDF)Tenn Muni (Text)

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: fcc, municipal broadband, state laws, tennessee
Companies: at&t

30 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 30 Sep 2015 @ 11:54am

When will they get tired of their blatant corruption and greed? Is it ever enough?
[ link to this | view in chronology ]
Mason Wheeler (profile), 30 Sep 2015 @ 12:07pm

Tennessee, eh? Why am I not surprised?

It wouldn't be the first time that a Southern state has attempted to frame the practice of wealthy business owners preying upon ordinary people as a protected "states rights" issue...
[ link to this | view in chronology ]
- drjimmy (profile), 30 Sep 2015 @ 1:29pm
  
  Re:
  North Carolina as well, which of course should surprise nobody.
  [ link to this | view in chronology ]
limbodog (profile), 30 Sep 2015 @ 12:09pm

Pshaw
To listen to you, one might think it was a bad idea to let corporations write legislation directly with no input from the public!
[ link to this | view in chronology ]
- Karl Bode (profile), 30 Sep 2015 @ 12:43pm
  
  Re: Pshaw
  It is an extreme position I'll admit.
  [ link to this | view in chronology ]
Anonymous Coward, 30 Sep 2015 @ 12:21pm

Money
can buy you just about anything...

ESPECIALLY A POLITICIAN!
[ link to this | view in chronology ]
Lord Binky, 30 Sep 2015 @ 12:26pm

Ah Tennessee...I see you doubled down on the classic hypocrite reversal argument. Still, you really couldn't do better than "The FCC is violating our inviolable right to self-governance in stopping us from stripping the right to self-governance of our communities!"?
[ link to this | view in chronology ]
Anonymous Coward, 30 Sep 2015 @ 12:36pm

where there's no room for it, you cant put common sense! the only way out of this for Tennessee and similarly screwed (of there own choosing) states is for the population to take up the challenge, try to get something worthwhile done but importantly, see who is reaping the benefit on the various panels that encourage, not just let this happen!
[ link to this | view in chronology ]
That Anonymous Coward (profile), 30 Sep 2015 @ 12:37pm

I'd feel better if it actually took more campagin "contributions" to get them to screw that many people.
[ link to this | view in chronology ]
Baron von Robber, 30 Sep 2015 @ 12:52pm

"In a brief filed Friday in a federal appeals court, Tennessee argued that states have an "inviolable right to self-governance,""

In a brief filed Saturday in a state appeals court, Davidson County argued that counties have an "inviolable right to self-governance"

In a brief filed Sunday in a municiple appeals court, Nashville argued that cities have an "inviolable right to self-governance"

In a brief filed Monday in a basement, Billy Fish Bob argued that individuals have an "inviolable right to self-governance"
[ link to this | view in chronology ]
- drjimmy (profile), 30 Sep 2015 @ 1:28pm
  
  Re:
  States, counties, cities have no right whatsoever to regulate interstate commerce which all broadband is.
  [ link to this | view in chronology ]
  - Anonymous Coward, 30 Sep 2015 @ 2:05pm
    
    Re: Re:
    I disagree. The infrastructure being discussed here is a utility and physically resides in one particular state. We're not talking about boundary-crossing connections. I really don't see how regulating interstate commerce applies here. It's not like Tennessee is threatening to levy an import tariff.
    
    While the law Tennessee is protecting here is incredibly stupid (and yes, probably the result of corruption) they actually have a pretty solid point. The US Congress (or regulatory agencies they've delegated to) really don't have the jurisdiction to override this. And while I hate that this law might be preserved, the precedent set by going the other way would be incredibly dangerous.
    [ link to this | view in chronology ]
    - RainbowboomX (profile), 30 Sep 2015 @ 2:29pm
      
      Re: Re: Re:
      But in this case its not the civilians being represented by Tennessee, its the corporations that are being represented by Tennessee, which is not in this case self gorvernace as meant by the constitution :D
      [ link to this | view in chronology ]
    - drjimmy (profile), 30 Sep 2015 @ 5:05pm
      
      Re: Re: Re:
      Broadband service doesn't cross State boundaries? Broadband doesn't give subscribers direct access to the global economy?
      Of course any State is a will to create it's own IntraState network to only connect to end points within the State and regulate it to that extent. They can call it TennNet.
      [ link to this | view in chronology ]
      - Anonymous Coward, 1 Oct 2015 @ 4:15am
        
        Re: Re: Re: Re:
        I think you meant Tenet
        [ link to this | view in chronology ]
      - Anonymous Coward, 2 Oct 2015 @ 12:24pm
        
        Re: Re: Re: Re:
        Your network traffic may cross state boundaries, but that's not the point. Vehicular traffic crosses state boundaries after having originated on local roads. That doesn't give the feds the ability to regulate county roads, or to prevent the state from regulating county roads.
        [ link to this | view in chronology ]
HegemonicDistortion (profile), 30 Sep 2015 @ 12:53pm

Patently absurd argument (Marsha Blackburn-level ignorance and absurdity), and a waste of taxpayer funds in a state that can ill afford it.
[ link to this | view in chronology ]
drjimmy (profile), 30 Sep 2015 @ 1:23pm

This should surprise nobody. These are the same States that fought over slavery at the individual level, they'll fight just as hard for State level enslavement.
[ link to this | view in chronology ]
Mark Wing, 30 Sep 2015 @ 1:29pm

Unlike Mexico, Tennessee is probably stupid enough to pay for a wall around itself. We should explore that.
[ link to this | view in chronology ]
dogwitch (profile), 30 Sep 2015 @ 1:42pm

i do hope the fcc wins the case. might scary other states to changing their corrupt laws to.
[ link to this | view in chronology ]
tom (profile), 30 Sep 2015 @ 2:33pm

In Oklahoma, the Republican Party mantra is Local control. Don't see why that shouldn't apply to letting cities compete with established ISPs, as long at it is approved via the ballot box. Blocking cities from doing this would violate one of the basic tenants of the party platform. Don't know if Oklahoma allows local entities to setup ISPs but if they have blocked it, wouldn't be the first time party mantra lost to corporate bucks.
[ link to this | view in chronology ]
Anonymous Coward, 30 Sep 2015 @ 2:40pm

I think the author is missing something here and it has to do with the ISPs exploiting a prevailing sentiment in the south eastern US. Specifically it has to do with those traditionally considered the "deep south", very conservative, and were once known as the Confederate States of America. The US Civil War wasn't originally to "free the slaves", it was about keeping the Union together and keeping a strong central federal government versus a weaker one in which states had (much) more power inside their own borders. The traditional state's rights versus "federal interference" argument was such a polarizing argument we ended up in a bloody and vicious war over it. Slavery was but the catalyst to the argument. It wasn't until later, when Lincoln realized very few people cared about keeping the Union together when the costs in lives and resources were mounting that he realized he needed a specific non-abstract moral argument to win the war. Hence, the campaign to free the slaves was born.

That's a long winded explanation to get here: Most people in the US south have an inherent, learned at momma's knee distrust of the US federal government and its interference in any and all facets of their lives, real or imagined, inherited from those that lived through Reconstruction in which the US federal government literally took over every facet of state and local political and social institutional functions. ISPs in Tennessee (and other similar states) realize this and are expertly manipulating those inherited dispositions to launch attacks on the FCC through politicians and a general public absolutely passionate and in some cases fanatical against federal government intrusion where a state or local government has had traditional control. And they have a point, even if they are making the right point with the wrong fight. It is and has been traditional for municipal boards and governments, and to lesser degrees the state governments, to establish utility monopolies on public rights of ways without outside interference. It's hypocritical that a state government should be interfering with those same rights that have traditionally been excersized by municipalities alone on utility right of way monopolies while simultaneously criticizing the FCC trying to right the wrong the states are accusing the FCC of. That makes it possibly the wrong fight (incumbent funded protectionist laws) for the right principle (local regulations for public utility rights of way and limited monopolies).
[ link to this | view in chronology ]
- Anonymous Coward, 30 Sep 2015 @ 5:04pm
  
  Re:
  To a native Southerner your argument would pass well if the state being discussed were not Tennessee.
  
  You seem to have forgotten that Tennessee is the home of TVA [Tennessee Valley Authority]{part of the Federal Government} which has total control and ownership of all Tennessee River dams, power generation, river navigation, electric power, nuclear power et. No other state has of it economy by the federal government as Tennessee. Other states have a higher percentage of Federal control of land but Tennessee is unique in total control of economic activity by the Federal government.
  [ link to this | view in chronology ]
- sorrykb (profile), 2 Oct 2015 @ 9:26am
  
  Re:
  Anonymous Coward wrote:
  The US Civil War wasn't originally to "free the slaves", it was about keeping the Union together and keeping a strong central federal government versus a weaker one in which states had (much) more power inside their own borders.
  No no no no no no.
  
  The Civil War was most definitely about slavery. The states that seceded explicitly stated this. Here's a few excerpts from declarations of seceding states.
  Georgia: "For the last ten years we have had numerous and serious causes of complaint against our non-slave-holding confederate States with reference to the subject of African slavery."
  
  Mississippi: "Our position is thoroughly identified with the institution of slavery-- the greatest material interest of the world."
  
  South Carolina: "an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution."
  
  Texas: "In all the non-slave-holding States, in violation of that good faith and comity which should exist between entirely distinct nations, the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon an unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of equality of all men, irrespective of race or color-- a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of Divine Law."
  
  Virginia was marginally more circumspect: "the Federal Government, having perverted said powers, not only to the injury of the people of Virginia, but to the oppression of the Southern Slaveholding States."
  
  Please don't bring revisionist history into this. I'll give you the benefit of the doubt and assume that you were taught this in school (as many of us were, and many students still are), but it is demonstrably false, and an attempt to whitewash U.S. history. Yes, the goal of the North was to preserve the Union, but for the Confederacy it was all about preserving slavery.
  [ link to this | view in chronology ]
Coyne Tibbets (profile), 30 Sep 2015 @ 5:44pm

Defending corporate greed
If only we could get the states to defend their citizens' civil rights and comforts as avidly as they defend corporate greed, this country would be a vastly more wonderful place.
[ link to this | view in chronology ]
toyotabedzrock (profile), 1 Oct 2015 @ 12:25am

Couldn't the law be attacked via anti trust laws or by the ftc?
[ link to this | view in chronology ]
Gabriel (profile), 1 Oct 2015 @ 5:36am

Regulating interstate commerce does not give Congress authority to pass laws about my driveway, nor to override my state's laws about my driveway. Local broadband access is not interstate commerce any more than pulling my car out of my driveway is.

This is a horrible law, and Tennessee ought to be ashamed of itself and Tennessee voters should be up in arms about it. But states have the Constitutional right to pass horrible laws and the federal government has no right to interfere except in the case of specific, delegated powers. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[

If the constitutional limits on the federal government's exercise of power can validly be ignored whenever we agree with the motivation behind the abuse, then the constitution is meaningless.

If Tennesee makes a bad call then that only affects Tennessee and Tennesseans. If all legitimate legal authority lives in Washington then when Washington makes a bad decision it affects all Americans. Avoiding the latter scenario was exactly the reason for our federal model. c.f. "laboratories of democracy".
[ link to this | view in chronology ]
- Baron von Robber, 1 Oct 2015 @ 6:26am
  
  Re:
  If you can only go as far as the end of your driveway, you'd have a correct analogy. But once your tires leave that driveway, you are wrong.
  [ link to this | view in chronology ]
Gabriel (profile), 1 Oct 2015 @ 7:29am

If you're referring to the current practical state of supreme court jurisprudence, you're probably correct. But if you're attempting to describe the intended reading, or any honest reading, of the plain language of the constitution, the idea that driving down the block is an act of interstate commerce which Congress has delegated authority to regulate is nonsensical; likewise purchasing network connectivity to a CO a quarter-mile from my house.

Your definition of "interstate commerce" is indistinguishable from the definition of "commerce", begging that we ask why the founders saw fit to specify "interstate".
[ link to this | view in chronology ]
Bridget Byrnes, 8 Feb 2019 @ 8:48am

Marsha IDIOT Blackburn
I live less than 2 miles from Marsha Blackburn and AT&T put one of these giant towers in my front yard ....... funny that they didn’t pick her yard. OH why you ask CUZ IT IS A GIANT EYE SORE and looks like CRAP! Oh and better yet it’s less than 50 feet from a creek! AKA Rome Ga. / Brain cancer. They have destroyed line of trees that were planted in 96 the year my sister passed away. I have been a resident of Brentwood TN for over 50 years WHY ON EARTH my yard?????? Less than 200 yards is a 3 way stop that would be a PERFECT SPOT! Well I was told if you plant a 50 lb magnet it interferes with the tower..... is this true? Anything you can do 2 help me out I would greatly appreciate.
[ link to this | view in chronology ]