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Over the past years, states have put in place preventative laws that make it more difficult, if not impossible, for communities to build their own Internet networks.
These state barriers have often been enacted at the behest of major telecommunications monopolies to limit competition, and include everything from outright bans on municipal broadband networks to oppressive restrictions and demands that create legal uncertainty for communities attempting to ” offer telecommunications and Internet services, including through partnerships.
When the Covid-19 pandemic hit the United States in March 2020, 19 states maintained significant restrictions on municipal networks. Today, the number of states respecting these barriers has been reduced to 17. The pandemic marked a turning point in the struggle for local authority, and last year, Arkansas and Washington passed legislation significantly removing legislative barriers to public broadband networks.
In February 2021, both houses of the Republican-dominated Arkansas state legislature unanimously voted to send Senate Bill 74 to the governor of the state Asa hutchinson, who signed the bill. The legislation grants government entities the power to provide broadband services and extends the funding options available to municipalities to fund municipal broadband projects.
In May 2021, the Governor and Democrat of Washington State Jay inslee signed two bills expanding municipal authority to provide retail internet services to end users, Bill 1336 and Senate Bill 5383. Both bills reduce barriers to municipal networks, but Bill 1336, which completely removes all previously held restrictions on public broadband in Washington state, is should take legal precedence.
The recent progress made by Arkansas and Washington is extremely welcome as more federal, state and local funding is available to improve broadband infrastructure than ever before. Momentum for municipal broadband is building, but there is still a long way to go to break down remaining legal barriers in 17 states.
Go forward, stall and almost go back
Every year, bills to expand the authority of local governments and municipal power cooperatives to build broadband networks are introduced in state legislatures. And every year these bills stagnate, are withdrawn and die because of the immense lobbying power of private monopolies. In 2021, state legislators Idaho, Montana, Missouri, Tennessee, Nebraska, and North Carolina, all have introduced legislation to reduce state-owned barriers against municipal broadband. Many of these bills died in committee after action on the legislation was postponed indefinitely.
To give an example, the legislation (HB 422) introduced at the start of Montana’s legislative session in 2021 – which would have allowed state local governments to own and operate broadband community networks – suffered a dramatic twist when dozens of lawmakers who supported previously the proposal suddenly opposed it, prompting the passage of the bill. die in a final vote in the House.
The sponsor of the bill, Democratic State Rep. Kelly kortum, told the Daily Montanan that he attributes his failure to Lobbying efforts at the 11th hour of incumbent telecommunications companies in Montana, which he said were caught off guard by the broad support the bill initially received. “I expected him to fail upstairs in the House. It doesn’t, and then the lobbying really started, ”Kortum said.
Next door in Idaho, it is a monopoly of cable and local telephone companies that have pushed hard against municipal open access approaches that would create stiff competition. In the largely rural states, some local telephone companies are deeply concerned about competing in a real market.
Many states preserved previously established barriers throughout 2021, but one state, Ohio, almost became the first state in a decade to erect new barriers to the establishment and expansion of municipal networks in broadband.
In June, the Ohio Senate included an amendment which effectively banned the creation of municipal broadband networks in its two-year, $ 75 billion budget bill. Fortunately, after local authorities, community broadband advocates, and angry residents and businesses across the state spoke out against, the amendment added anonymously was withdrawn from the budget. The governor and lieutenant governor, both Republicans, have spoken out against these limits on municipal broadband.
While some state lawmakers work tirelessly to reduce barriers to municipal broadband, the largest ISPs are able to use their outsized influence and cash reserves to block legislation that would undermine their control over the top market. debit. “In the 116th Congress alone, these companies spent $ 234 million on lobbying and federal elections,” Common Cause and the Communications Workers of America report, in a recent study, Broadband Controllers: How ISP Lobbying and Political Influence Shaping the Digital Divide.
A partisan issue at the federal level
The Biden administration American employment plan focused on strengthening non-profit, municipal and cooperative models to develop nationwide broadband broadband infrastructure. Sadly, in sausage-making, the focus on broadband community networks has been dropped, and outspoken federal support for municipal networks largely subsided as monopoly lobbyists swarmed Congress and the House. White.
This is representative of a disconnect that exists between Republicans in Congress and Republican officials at the local and state levels. While expanding local Internet choice is a predominantly bipartisan issue at the local level, it is a highly partisan issue in Congress.
For example, the same month that the Republican-dominated Arkansas state legislature removed restrictions on municipal broadband, Congressional Republicans presented a package of invoices attempt to prohibit communities from building their own networks and engaging in national public-private partnerships.
Meanwhile, Congressional Democrats have lobbied to prevent states from enacting or enforcing laws that prohibit municipalities from building and operating broadband networks. In March, Congress Democrats introduced the Community Broadband Act, which would prohibit prohibiting or limiting the ability of any state, regional or local government to build broadband networks and provide Internet services. However, Democrats were ultimately not united in pushing this language into the infrastructure bill.
A network of legal barriers
Common approaches to anticipating municipal broadband networks range from straightforward bans to confusing financial restrictions and complex legal requirements. While some states have established a primary barrier to community broadband, many others have adopted a set of regulations that eliminate any possibility of municipal connectivity, if only because of the legal uncertainty created by complex laws. and waves.
Of the 17 states with restrictions on municipal networks, a few explicitly prohibit local governments from providing communications services to their citizens. In Nevada, only municipalities with less than 25,000 residents and counties with less than 55,000 residents can provide telecommunications services. Tennessee prohibits municipalities without electric utilities from providing Internet access in most situations. The local governments of Missouri and Texas are limited to providing Internet access and no other telecommunications services. Laws in the states of Montana and Pennsylvania allow municipal networks, but only in unserved communities, with vague definitions of what this means.
In states that do not expressly prohibit municipal networks, state legislatures can still establish legal barriers that deter investment in community broadband networks. One of the most striking examples is North Carolina, where an array of restrictions and onerous requirements “collectively have the practical effect of hampering public communications initiatives,” according to the Coalition for Local Internet Choice [pdf].
Other states, including Virginia, Florida, and South Carolina, require municipal networks to charge private sector costs, pay additional taxes, set excessively high prices, and / or refrain from subsidizing affordable services. , in the name of the protection of private “competition”. In other states, lawmakers have established strict procedural requirements, including a prescribed bidding process in Michigan and community referendums in Alabama and Minnesota.
To learn more
To learn more about the legislative prohibitions maintained by states, see this resource [pdf], maintained by the Coalition for Local Internet Choice (CLIC), which summarizes the state obstacles to public broadband in July 2021.
The CLIC list focuses on a more legalistic look at state barriers and still includes Washington and Arkansas, as they see how the law takes hold. The Institute for Local Self Reliance focuses on the 17 states where state boundaries severely restrict municipal broadband networks and partnerships, while agreeing with CLIC that other states have barriers that may also discourage investment. .
Editor’s Note: This article was written by Jericho Casper, reporter for the Community Broadband Network Initiative at the Institute for Local Self Reliance. Initially published on MuniNetworks.org on September 15, 2021, the piece is republished with permission.