How the FCC’s Decision Frees NC and TN Municipalities to Provide Broadband


Chris Mitchell from the Institute of Local Self Reliance recently interviewed Jim Baller, counsel to both Chattanooga EPB and Wilson, NC on their now successful petitions at the FCC. We encourage our readers to listen to the full half-hour interview here, and bring you just a few of the highlights below (slightly edited):

Chris: How did it go? We just had this great vote at the FCC and we’re going to dig into it, but tell us what the FCC said in brief?

Jim: “The FCC agreed with us and preempted the state laws in question, so there are now no more constraints on EPB and other municipal utilities in Tennessee and on Wilson and other municipalities in North Carolina. Communities can now evaluate their opportunities and decide what to do without the artificial constraints imposed on th[em].”

Chris: And when you say now, you mean now, we are not waiting on anything.

Jim: “The orders were effective on issuance, so, as of last Thursday (March 12), the laws at issue in North Carolina and Tennessee are preempted. Now there may well be appeals of these decisions, but at the moment, the orders are in effect and the state laws are preempted….”

Chris: One of the big questions people have been asking is why does the FCC have the authority to do this?

Jim: “Well, in the opinion, the FCC confirmed that Section 706 of the Telecommunications Act of 1996 authorizes it to remove barriers to broadband investment. In fact, Section 706 requires the FCC to remove barriers to broadband investment and competition. It says that the FCC must be proactive in identifying where such barriers exist, and if it finds that there are impediments to the reasonable and timely deployment of advanced telecommunications capabilities to all Americans, it must remove those barriers. The FCC found that this was clear authority for it to remove the Tennessee and North Carolina laws in question….”

Chris: [in respect to the FCC’s discussion on North Carolina’s law]…the word thicket came up…?”

Jim: “….the [NC] law enacted in 2011 was described as advancing fair competition and a level playing field for the private sector. Significantly, the FCC took a hard look at every line and word of the law and found that the law was in fact prohibitive. Certainly, all the provisions working together created a massive wall that no public entity could get over. The FCC repeatedly found that the constraints that were in this law operated in a one-way fashion and created an asymmetrically heavy burden on municipalities that the private sector did not have to meet.”

Chris: One of the things that I found interesting, was that the FCC seems to provide a road map for other states …

Jim: “… the FCC specifically in one of its paragraphs invited entities in other states that believed that they were constrained by state laws to petition the FCC for a review of those laws. The FCC is very much interested in looking at other state laws that may be posing similar constraints……..”

Chris: The opinion is very readable. It details why each individual aspect of the NC law failed with regard to the FCC….

Jim: “…This was a conversation, so to speak, in which hundreds of comments were filed by all sorts of interested parties, including those who focused on the constitutional issues, those who criticized municipalities for philosophical reasons, those who alleged that municipalities have unfair advantages, that who said that either do too good a job or too bad a job…all of this was aired in this proceeding…. And the FCC looked at each and every one of those claims and found that they were not supported by substantial evidence or were irrelevant in some respects. ….This record in and of itself is the most comprehensive statement on the state of municipal broadband that I have ever seen written …”

Chris: You have been working in this field for more than 20 years, would this have happened without the individual personalities at the Commission right now?

Jim: “Well, in the two decades that I have been involved in this area, we have seen many good Commissioners on the FCC. But we’ve never seen a Chairman of the FCC who is more active and committed to creating competition and in building a strong base of broadband connectivity to the Internet as Chairman Tom Wheeler…. It is very much the Chairman’s drive that put these issues squarely in front of us, to deal them in a way that he believes will serve our country well. I am very thankful to him for doing that.”

Chris: You helped organize the Coalition for Local Internet Choice (CLIC). That is not over. People should still be joining, right?

Jim: “Not only is it not over, but I think our challenges are increasing along with our successes. This is not a time when we can sit back and clap ourselves on the back. Across the country there are members of legislatures that are for political reasons opposed to anything the current White House supports. We have seen battles in the states every year for the last 20 years. It is important for us to target the right issue. The right issue is local choice and the ability of communities to participate significantly in the decisions that effect their economic well-being, their educational opportunities, their public safety, their access to health care, transportation, energy, environmental protection, and much more. That’s what at stake here. These are traditional interests of local governments. They always have been, and they will always be. We are talking about creating platforms and drivers that can foster success simultaneously in all of those areas. We have to enable local governments to contribute to the well-being of our communities. That is what we are doing at the Coalition for Local Internet Choice. That’s what other organizations, like Next Century Cities, are also trying to advance. We need an activist country. This is such an important issue, and the stakes are so high for every one of us.”