Wednesday's Sixth Circuit U.S. Court of Appeals ruling overturning the FCC's municipal-broadband preemptions has predictably raised new questions about what happens next. Supporters of the rejected FCC policy now expect to accelerate their efforts in state legislatures, and not just in North Carolina and Tennessee, where the contested muni cable projects were scotched.
"Once there's light shined on those laws, enough state legislators will decide it's time to stand up to the incumbents," said Mark C. Del Bianco, an attorney who represented Next Century Cities and the Institute for Local Self Reliance, two advocacy groups that supported the efforts of Chattanooga, Tenn., and Wilson, N.C., to build competitive high-speed networks for their citizens.
Another option is to bring the issue to Congress, which could authorize the FCC to override state restrictions on municipal cable, Del Bianco added.
Other sources suggested that although there is no process to appeal Wednesday's ruling by judges in the Sixth Circuit court, the Supreme Court could decide to take up the issue. But they admitted that process seems unlikely.
Action Brewing in Tennessee
Tennessee lawmakers will consider proposals next year to end state restrictions on where municipal power utilities may offer broadband, according to a report in today's Chattanooga Times Free Press. The story notes that the expectation is based on recently completed studies by the Department of Economic and Community Development and the Tennessee Advisory Commission on Intergovernmental Relations which cited "the need to expand high-speed broadband across Tennessee."
"I'm surprised that the [court] ruling came so quickly, but now it solidly puts the ball in the court of the state legislature," Republican State Sen. Janice Bowling told the Chattanooga newspaper. She said that she plans to reintroduce legislation next year to remove state limits on municipalities and power co-ops offering broadband. "Is the state going to continue to block its citizens from having access to 21st century technology so key to our economic future?" she asked rhetorically.
Also quoted in the Times Free Press article, Tennessee Republican State Rep. Kevin Brooks lamented, "I can see the Gig City from my house, but I can't get it." Chattanooga has dubbed itself Gig City since the EPB (formerly the Electric Power Board of Chattanooga) began delivering one gigabit-per-second speeds in 2010. EPB now offers up to 10 Gbps service.
"We realize how great it is to have the Gig City in Chattanooga," Brooks told the local paper. "Just think how great it would be if we can become the Gig State, with access to high-speed broadband everywhere in Tennessee." He pointed out that AT&T, Charter Communications and other investor-owned utilities have had years to extend high-speed broadband into more rural areas of the state but have yet to do so, according to the report.
EPB president David Wade also put the onus on state lawmakers to take the next step. "Ultimately, Tennessee's broadband gap is a problem for Tennesseans, and we need a Tennessee solution," Wade told the Times Free Press. "We will continue to work with the growing number of state legislators and grassroots citizens interested in removing the barriers that prevent EPB and other municipal providers from serving our neighbors in surrounding areas who have little or no access to broadband."
In Wilson, N.C., officials offered similar perspectives. The "Greenlight Community Broadband Project" in Wilson, which was expanded into the neighboring Pinetops area in 2010, will not be affected immediately as the decision is reviewed, but "disconnection could happen," according to a report in today's Wilson Times newspaper. “There is a possibility we could have to withdraw the broadband service from Pinetops, but it will depend on what happens next,” Greenlight general manager Will Aycock told the local newspaper. “If we have to, we’ll work with partners to do so as painlessly as possible.”
Pinetops Town Administrator Lorenzo Carmon is quoted as saying other options pale in comparison to the Greenlight Service, which is run by the city in competition with Time Warner Cable and CenturyLink local broadband services. “This is a digital economy that we are a part of even though Pinetops has a population of about 1,500 people,” he said. “We’re still a part of the global economy, and having high-speed access to that through the internet helps us to stay competitive.”
No Language in Ruling for Next FCC Steps
The Sixth Circuit court decision offered no specifics about what the FCC should do next, attorney Del Bianco noted. In its ruling, the court emphasized that its finding "is a limited one."
Deb Socia, executive director of Next Century Cities, the advocacy group representing 147 communities nationwide, called the ruling "a setback in the fight to ensure access to next-generation broadband for more Americans."
“We hope that this decision will be appealed and that the rights of communities to make their own broadband decisions will be respected," she said, thanking, "the FCC for fighting for the rights of local communities, and ... Mayor Andy Berke of Chattanooga and Mayor Bruce Rose of Wilson for standing up for their communities’ rights to local choice and the broadband solutions that work for their citizens."
Jim Baller, whose law firm was the lead counsel for Chattanooga and Wilson in the court case, vowed that "the fight to preserve, protect, and advance community decision-making will go on."
"Notably, the court did not dispute the FCC’s factual findings, based on a massive public record, that the laws of Tennessee and North Carolina at issue are anticompetitive and contrary to the public interest," Baller pointed out. "In fact, the court stated that it did not question 'the public benefits that the FCC identifies in permitting municipalities to expand Gigabit Internet coverage.' ”