On June 10, 2014, FCC Chairman Tom Wheeler published an op-ed championing municipality-funded broadband. Noting Chattanooga, Tennessee’s past as a 19th century railroad boom town, he juxtaposed the city’s history with its recent decision to fund its own gigabit-per-second infrastructure: “Chattanooga’s investment has not only helped ensure that all its citizens have Internet access, it’s made this mid-size city in the Tennessee Valley a hub for the high-tech jobs people usually associate with Silicon Valley. Amazon has cited Chattanooga’s world-leading networks as a reason for locating a distribution center in the area, as has Volkswagen when it chose Chattanooga as its headquarters for North American manufacturing. Chattanooga is also emerging as an incubator for tech start-ups. Mayor Berke told me people have begun calling Chattanooga “Gig City” – a big change for a city famous for its choo-choos.”
Mr. Wheeler then delivered his punchline: “I believe it is in the best interests of consumers and competition that the FCC exercises its power to preempt state laws that ban or restrict competition from community broadband. Given the opportunity, we will do so.” Fast-forwarding to the present, Chairman Wheeler just announced on Monday that he is circulating a proposed Order to his fellow FCC commissioners encouraging FCC preemption of state laws that stymie municipality-sponsored broadband projects via its granted authority under Section 706 of the Communications Act. The announcement comes a few weeks after President Obama himself pushed for increased support of community internet, with the White House publishing a detailed policy report extolling its virtues.
Proponents applaud the move as facilitating the growth of high-speed internet in communities where major telecoms have spurned them, instead backing legislation in some twenty states that limit the practice. Many argue that these efforts come principally from telecom companies’ self-interest to bolster their monopolistic or duopolistic positions in the ISP market. However, opponents such as the conservative think-tank American Legislative Exchange Council, paint the laws as helpful in safeguarding free markets and limited government while stopping municipal projects from “making markets less attractive to competition because of the government’s expanded role as a service provider.”
What’s clear is that the FCC is poised to take a much more assertive role in Internet regulation, as this is not the only big move the commission has in store this week. The FCC has also recently announced a plan to reclassify high-speed internet as a telecommunications service under Title II of the Communications Act (see MTTLR’s Feb. 4 blog post for more), giving the commission strong authority to champion net-neutrality across ISPs. The move has already prompted a legislative response from Congressional Republicans that would curtail the FCC’s powers. With the U.S. having already fallen behind many other Western countries on both speed and price for its broadband internet, 2015 is shaping up to be a watershed year for the future of the country’s internet.
Adam Stefanick is an editor on the Michigan Telecommunications and Technology Law Review, and a member of the University Michigan Law School class of 2016.