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September 15, 2014

Muni Broadband Debate Focuses on Section 706 Authority

IPI expert referenced: Bartlett Cleland, Tom Giovanetti | In The News | Media Hit
  State Telephone Regulation Report

By Kery Marukami, Jimm Phillips

Divided Comments

Some filed early comments. Think tanks and others often aligned with industry opposed state pre-emption, while municipal interests backed it.

Institute for Policy Innovation President Tom Giovanetti urged the FCC to reject the petitions, saying in a Sept. 4 blog post that "the power to regulate state affairs belongs to the states" ( IPI comments opposed both petitions because a state has a constitutional right to use its prerogative as a state to restrict municipal broadband ( States "have the power to limit and regulate municipal entry into broadband provision, and their concerns are just and legitimate," Giovanetti said in the blog post. The 10th Amendment gives states "the power to regulate their internal matters, including that of whether the state will allow municipalities to build broadband systems subjecting all citizens of the state to the risk of failure," he said.

Less Partisan in States

There's been some partisanship in the national debate over municipal broadband (STRR Aug 1 p1). But lawmakers and officials see any state-level debate on pre-emption as not falling along strict party lines, said industry observers and lawmakers in interviews in early September. They differed on what a more unified response at the state level would look like and said it's too early to call the issue's impact on state elections.

North Carolina and Tennessee are most likely the states where the petitions could become a campaign issue because their laws are under FCC scrutiny, but there's no evidence it's a significant issue in state campaigns, said Madery Bridge Managing Director Bartlett Cleland, also Institute for Policy Innovation resident scholar-tax and innovation policy. Republican Tennessee State Sen. Janice Bowling, who favors pre-emption, said the positive feedback she's received from constituents indicates the issue is "bubbling up, but I don't know that it will be a determining factor in any elections this year."

Bowling isn't up for re-election until 2016, but elections are set for 17 other seats in the Tennessee Senate and all 99 seats in the state House. All seats in North Carolina's House and Senate are also up for election this year, but pre-emption isn't likely to play a role in the state's campaigns, said Marcus Trathen, counsel to the North Carolina Cable Telecommunications Association. "The folks that believe there should be rules around governmental competition with private enterprise will continue to hold that belief regardless of what may happen."

Municipal broadband as a concept will almost certainly not become a campaign issue, but it could make an appearance as an issue of federal rights versus states' rights, Cleland said. Pre-emption advocates said they believe voters would care more about localities' authority than state authority to regulate if pre-emption becomes an issue in campaigns. Bowling said her constituents "don't see this as a states' rights issue. It's much more an issue of local control."

This is a shortened version. To read the full article, please visit State Telephone Regulation Report. 


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