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September 10, 2014

Muni Broadband Pre-emption More Partisan at Federal Than State Level

IPI expert referenced: Bartlett D. Cleland | In The News | Media Hit
  Washington Internet Daily

By Jimm Phillips

FCC consideration of petitions to pre-empt municipal broadband laws in North Carolina and Tennessee remains controversial, more so than the issue in states, said industry observers and lawmakers in interviews this week. There's been some partisanship in the national debate over the petitions from the Electric Power Board of Chattanooga, Tennessee, and Wilson, North Carolina (WID July 28 p1). But lawmakers and officials see any state-level debate on pre-emption as not falling along strict party lines. 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 to be the states where the petitions could become a campaign issue because their laws are under FCC scrutiny, but there's not 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," he said.

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."

Municipal broadband hasn't historically been something that "motivated people to make up their minds about a candidate, but I think to some extent the outrage over taking away local authority can be a proxy for someone saying a candidate is for big cable and telephone companies," said Christopher Mitchell, director of the Telecommunications as Commons Initiative at the Institute for Local Self-Reliance. "The role of the states versus the federal government is a lower priority for people than whether there's authority at the local level or not.

When it comes down to re-establishing that authority, if it takes the feds stepping on states to make sure the states aren't stepping on cities, I think people are more okay with that than they are otherwise."

The U.S. House's largely party-line 223-200 vote in July for an amendment to the Financial Services and General Government Appropriations Act (HR-5016) that would prohibit the FCC from pre-empting state municipal broadband laws (WID July 17 p9) is a clear sign of a national partisan split among elected officials on pre-emption, but it becomes more complicated at the state level, Mitchell said. The split is only apparent among federal and state elected officials, while local officials and voters tend to be far less partisan about pre-emption, he said. Had the House's vote on the HR-5016 amendment, sponsored by Rep. Marsha Blackburn, R-Tenn., been less a "high priority vote at the time, I think we would have seen more of a mix and possibly the same vote totals," Mitchell said.

The North Carolina and Tennessee legislatures' response to any FCC decision on the petitions won't occur until the legislatures reconvene in January, said Susan Frederick, National Conference of State Legislatures' (NCSL) senior federal affairs counsel. "States are either going to move forward in the absence of a ruling or they're going to have to abide by whatever the FCC ruling turns out to be." The pre-emption petitions could result in a bipartisan response among state lawmakers, said James Ward, NCSL director-state-federal relations committee. "One thing you can do to create bipartisanship in a state legislature is to try to pre-empt them in some manner."

Bowling said she plans to re-introduce her bill to amend Tennessee's 1999 municipal broadband law to let muni networks serve adjacent areas when the state legislature re-convenes. Bowling withdrew the bill earlier this year, when it was called SB-2562, amid industry opposition that had stalled it in the state Senate (WID June 20 p4). The bill is important because Tennessee residents "are responding to the fact that broadband is becoming the essential utility of the 21st century," Bowling said. -- Jimm Phillips (


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