The past few days have been lively for the FCC, with a passing vote to redefine what counts as ‘broadband’ internet access and rumors of regulation that would limit States’ ability to curtail municipal broadband programs. The these changes come following a recent statement by the Executive Office of the President concerning the availability of ‘fast enough’ internet access for rural populations across the U.S. The statement illustrated that there exists a sharp divide between the availability of internet access at certain speeds in rural, as opposed to urban, communities: 51% of of the rural population lacks access to 25 Mbps internet access as opposed to 94% of the urban population. Prior to the FCC’s redefinition of ‘broadband’ internet access as 25 Mbps or greater, the standard was only 4 Mbps or greater. At this level, the divide is much smaller, 95% of rural communities and 99.9% of urban communities have access that meets this threshold. Naturally, many internet service providers (ISPs) are not happy with the new definition. While protesting that the new standard is far more than ‘most customers’ will ever need, ISPs continually push customers towards faster (and more expensive) packages. On the Comcast website, the first tier of internet access that is advertised as sufficient for HD streaming or online gaming is 50 Mbps. The Executive Statement claims that only 47% of rural communities have access to these speeds.
One promising method for bringing faster internet access to these underserved populations is municipal broadband. Over 350 municipalities are listed in the report as providing some sort of broadband internet access, but many are limited by state laws that prohibit public investment in the requisite infrastructure. A recent Missouri bill would place severe limitations on any public utility that would be competitive with a private enterprise. Under Section 704 of the Telecommunications Act of 1996, the FCC has broad discretionary power to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans” through a variety of means. Among these means, Wheeler hopes, is the ability to preempt parts of state laws that restrict municipal development of broadband internet. Municipalities in two states, North Carolina and Tennessee, have filed petitions asking the FCC to preempt state law. In his 2015 State of the Union, President Obama called for the FCC to grant the petitions that have been filed. Although there are currently only two petitions before the FCC, there are laws in at least 19 other states that prohibit or limit funding or expansion of municipal broadband. Many municipalities and public utility providers in these states are adopting a ‘wait and see’ attitude before filing petitions of their own.
Similar to the net neutrality debates in 2014, the ISPs will likely fight the regulation. The current mix of state and federal legislation, coupled with competing FCC regulation creates a difficult situation for municipalities and ISPs as well as the FCC and courts. Not only are there issues with the state law and regulation of it, but also the pending Title II classification of internet as a public utility which will come to a vote on February 26. As an ‘independent’ agency, the FCC is not bound by the President’s opinion. Regardless of who is fighting for what, these recent developments have made it clear that although the waters are muddy now, there will be clarity, one way or another, soon.
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Andrew Steiger is an editor on the Michigan Telecommunications and Technology Law Review, and a member of the University Michigan Law School class of 2016.