North Carolina’s Broadband Preemption Law Means Leaving Money on the Table - Bonus Episode 12 of the Community Broadband Bits Podcast

For the twelfth episode of our bonus series, “Why NC Broadband Matters,” we’re joined by North Carolina League of Municipalities Chief Legislative Council Erin Wynia to talk about Internet access in the state a full year into the COVID 19 pandemic, and the access gaps experienced in towns across the eastern part of the state.

Erin shares with Chris how a collection of mayors banded together to write to the state’s attorney general, imploring him to look into Suddenlink’s business practices after fielding questions and complaints from residents and businesses about slow speeds, price hikes, and service interruptions.

The two also bring in the larger context of this discussion, including the frustrating politics of preemption in the state, the legal landscape faced by cities wanting to build their own information infrastructure (whether it’s to lease it to private providers via partnerships or operate a network themselves) and the serious consequences for residents and businesses who have no or poor wireline broadband access because of it.


We produced this episode and the “Why NC Broadband Matters” series in partnership with NC Broadband Matters, a nonprofit organization advocating for better connectivity across North Carolina.

This show is 32 minutes long and can be played on this page or via Apple Podcasts or the tool of your choice using this feed, at the Community Broadband Bits page, or at the NC Broadband Matters page. We encourage you to check out other "Why NC Broadband Matters" content at the podcast feed so you don't miss future bonus content that may not appear in the Community Broadband Bits Podcast feed.

Transcript below. 

We want your feedback and suggestions for the show-please e-mail us or leave a comment below.

Listen to other episodes here or view all episodes in our index. See other podcasts from the Institute for Local Self-Reliance here.

Thanks to Shane Ivers for the Music: What's The Angle? by Shane Ivers - a Creative Commons Attribution (4.0) license.


Erin Wynia: If you allow local governments to lease their even existing assets to a private provider in the context of a public private partnership that this could move the dial. What we know is that there are communities out there all across the state that have paid for fiber and they are using it for internal purposes. All of those assets are just sitting there waiting to be utilized in a more robust way to provide this service to their communities. And our local governments right now, because of our state laws are handcuffed.

Ry Marcattilio-McCracken: We're bringing you another episode in our special Community Broadband Bits Podcast series, Why North Carolina Broadband Matters. I'm Ry Marcattilio-McCracken with the Institute for Local Self-reliance in Minneapolis, Minnesota. North Carolina Broadband Matters is a North Carolina nonprofit. Their mission is to attract, support, and champion the universal availability of affordable, reliable high capacity Internet access. The group has created the North Carolina chapter of Click Coalition for Local Internet Choice. ILSR is working with North Carolina Broadband Matters to produce this series, focusing on issues affecting people in North Carolina that also impact folks in other regions. We're joined today by North Carolina league of municipalities, chief legislative counsel, Erin Wynia to talk about Internet access in the state, a full year into the COVID-19 pandemic and the access gaps experienced in towns across the Eastern part of North Carolina in particular, in the area serviced by Suddenlink Communications.

Ry Marcattilio-McCracken: Erin shares with Chris, how a collection of mayors banded together to write the states Attorney General, imploring him to look into Suddenlink's business practices, after feeling questions and complaints from residents and businesses about slow speeds, price hikes, and service interruptions. But you also bring in the larger context of this discussion, including the frustrating politics of preemption in the state, the legal landscape faced by cities wanting to build their own information infrastructure, whether it's to lease it to private providers via partnerships or operate a network themselves, and the serious consequences for residents and businesses who have poor or no wireline broadband access because of it. Now here's Chris talking with Erin.


Christopher Mitchell: Welcome to another episode of the Community Broadband Bits Podcast. This is a bonus episode. We're doing another bonus episode on North Carolina made possible by North Carolina Broadband Matters, wonderful group, really working to improve access. We're focusing here on the challenges that many towns face. And that includes not just a lack of broadband in many cases for parts of town, but also sometimes where they have it, it just doesn't work that good. And so we're going to explore that issue with Erin Wynia, a return guest, chief legislative counsel at the North Carolina League of Municipalities. Welcome back.

Erin Wynia: Thank you, Chris. It is great to be here speaking with you today.

Christopher Mitchell: And for people who are unfamiliar, what sort of stuff does the League of Municipalities do?

Erin Wynia: The League of Municipalities is a membership statewide organization here in North Carolina and we represent virtually every city and town in the state. There's almost 550 of them, and we represent their interests before the General Assembly and Congress and state agencies and advocate on the top issues that city officials have chosen and broadband is certainly one of those.

Christopher Mitchell: Yes, it seems like it has certainly been at the top of your list for a few years. I know that you personally have worked hard on it. Scott [Mooneyham 00:03:46] has done really good work. You have leadership around you that has really prioritized this. And you are in a very difficult environment in a state that is taking a different line as to what role locality should play than most states have.

Erin Wynia: That's correct.

Christopher Mitchell: We want to talk about some of the towns in eastern North Carolina. They have raised some awareness recently that even though they are served or partially served by a cable network, which we generally think of as providing pretty good service, most Americans that have cable access have quite high quality service, relatively speaking. What is happening in these towns that I think primarily are in eastern North Carolina?

Erin Wynia: Right, Chris, I think what's been going on of course, is throughout the pandemic, the inadequacies of broadband access across our country have obviously been laid bare and that's no different in eastern North Carolina. We just had some communities down there where the elected officials really took an interest in wanting to advocate for better service in their communities. North Carolina is a state right now where local governments themselves are very limited in what they can do to affect any kind of improvements in service for broadband. And so when they lack the tools to solve the problems themselves, they turn to other methods. And what we saw happening in December and January, these local mayors in eastern North Carolina banded together and sent a letter to our state Attorney General. The letter requested that the Attorney General investigate the business practices of their local broadband provider, a company named Suddenlink, and they were asking simply for some kind of consequences for what they perceive as really poor service. That can be service interruptions, slow speeds, unresponsiveness to consumers who call with complaints. It could be anything like false advertising as well as overcharging customers for the service.


Erin Wynia: One interesting thing that happened as an offshoot of that effort with the Attorney General is there was a city in New Bern, North Carolina city officials set up basically a complaint line. They did it with email and they said, "If you are a resident and you've got complaints with this provider, email here," and it was a city email account. And so they're just collecting these stories right now from their local residents and business owners.

Christopher Mitchell: When I looked at this list of problems that they are experiencing, to me, it read remarkably close to what we saw in Minnesota from Frontier. Minnesota, I believe it was two years ago, detailed a long list with photographic evidence and in all manner of testimonials that Frontier was not meeting the needs. And some of the things that I noticed was that the costs had been going up while the service has been getting worse during this pandemic. Not only long outages, but when they're fixed, they're fixed in a temporary way that doesn't adhere to proper standards and perhaps even some safety issues. And then as you note, exaggerated claims on advertised speeds based on what people are actually achieving. So, the towns wrote to the Attorney General and any sense of what could be happening next?

Erin Wynia: The Attorney General wrote back to them with promises to look into these business practices. They said they'd reached out to company officials and had been posing questions to them about their service and giving them an opportunity to have input on what's happening as well. So I think it's an investigation that's currently... it's just at its beginnings.

Christopher Mitchell: Erin, I'm curious if you would mind if we just suggest that if [inaudible 00:07:59] was listening to this and they have examples also of having service that's just not satisfactory that they reach out to someone at the least.

Erin Wynia: Absolutely. We would be happy to take those stories and direct them, if appropriate, over to the Attorney General.

Christopher Mitchell: And so they can just look around on the League of Municipalities and website or figure out how to get in touch him. I'm sure that anyone who's listening to this is going to be sophisticated enough to solve this problem on their own.


Erin Wynia: Absolutely. It's

Christopher Mitchell: For legal municipalities. So, I also just have to say this provider also happens to be the one that overbuilt Pinetops. And I find it fascinating that at a time that this provider was refusing to build in Texas and some other places that they found the resources to build in an where it just so happened that in doing so, harmed municipal fiber network, as we've talked about Wilson having to leave the Pinetop's area when a provider built and yet this provider is barely able to keep the service going in eastern North Carolina. That is odd to me.

Erin Wynia: Chris, it's odd unless you consider the political context that this example that you're talking about came up in. The city of Wilson has built a fiber network that is extraordinary. They provide incredible service throughout their area. And when they were building that network, it became a flashpoint with our General Assembly, which eventually passed the law in 2011 that cut off Wilson's ability to expand outside of its jurisdiction, to places like Pinetops that are nearby. It also basically shut down any other local government involvement in providing broadband service or even building the infrastructure. So there's an incredible political backstory on this one and Pinetops throughout is in suing after the law passed, they were able for a short period of time to receive service from the city of Wilson. And this is fiber optic broadband service. That became, again, a flashpoint at the General Assembly which passed a law that allowed the same company we're talking about, Suddenlink to, as you say, overbuild in that area. And it didn't have to be the same type of service.

Erin Wynia: And so in fact it proved to be inferior. The city of Wilson had to cut off its fiber optic service to this town and they're left with, because the legislature directed it, they're left with service provided by Suddenlink.

Christopher Mitchell: And then there was Wilson was fortunate to find a local entity that continued its service, although it doesn't have that same background as Wilson and that experience. So I don't have a sense of how that's going, but I just have to say, I mean, there's a couple of different directions I want to take this. But right now, as you're aware Arkansas, a state that is much more Republican... And people, I want to talk explicitly about the politics of this because this is not a matter of like Republicans think one way and Democrats think another way. So Arkansas, I believe it's like 80% Republican legislature by seats and it might be just one of the sides, but it's very conservative. They have removed almost all their preemptions. They allow all manner of public private partnership in the way that you have proposed for North Carolina and that passed unanimously.


Christopher Mitchell: And what I wanted to actually direct your attention to is what I find interesting is an article recently in Arkansas suggests that there's several cities that will benefit soon from expansions of their existing networks like Wilson. And there are several more towns that are going to be moving forward very quickly with networks to rapidly improve Internet access. And so I'm just curious how, as someone who cares deeply about North Carolina, making sure everyone has high-quality access, you see that in Arkansas. It must just be frustrating that you can't achieve the same thing here in North Carolina.

Erin Wynia: Chris, it's incredibly frustrating. There are obstacles that I would characterize as political obstacles in North Carolina that have in the past prevented what happened in Arkansas for moving forward here. And primarily we're talking about the opposition of large incumbent telecommunications providers in the state, and that's coming from both the telephone and wireless side, as well as the cable side. They have been very effective in expressing their opposition in our General Assembly and preventing local solutions like what Arkansas just enabled. We're not pretending that a local solution is the end all be all. It is one very important tool that the state needs in its policy toolbox to get better broadband access. And that goes along with having a grant program, which our legislature just initiated for the first time, a couple of years back. We now have a state broadband grant program. And two years ago, our state legislature authorized our electric cooperatives to be able to build broadband infrastructure and then serve in their footprint.

Erin Wynia: So we have good forward looking policy. This is the one that's missing, and it is very frustrating to see places like Arkansas move forward on that with similar political dynamics and we're still being held back here in North Carolina.

Christopher Mitchell: Yep. I would even go further and say that North Carolina has one of my favorite programs. It's a combination between the state and the Institute for Emerging Issues at NC State there. It is an exciting program that offers $5,000 grants per County in order to kickstart local digital inclusion processes. I have recommended this program in many other states. I feel like this is a really sharp way of not having to spend millions upon millions of dollars, but to catalyze local action. There's so much possibility in North Carolina. It just drives me nuts that your communities are unable to really take some basic steps. I want to come back to the politics of this, because this is really your expertise is understanding how the legislature works. And again, I want to unpack some perhaps misconceptions people have, but you know and I know that there are communities in North Carolina which cannot even accept free money to improve Internet access right now.


Christopher Mitchell: Truist, a bank which is a combination, it was a merger that came out of in part the BB&T which was headquartered in Wilson which actually used its own capital to support the Wilson network and BB&T has encouraged community networks. And in the state, they put a million dollars into a program, the Internet Society is distributing across areas in which Truist operates. They would like communities in North Carolina to be able to take advantage of this money to improve Internet access and communities in North Carolina feel that they are unable under the current legal environment to take advantage of that free money.

Erin Wynia: It is so disappointing that what you say is true. There's a widely held legal opinion that local governments in North Carolina lack the ability to take in any money from any source for this purpose. So that could be, as you said, free grant money from a non-profit foundation, it could be a government grant. Anything from that to raising funds through their powers of taxation or bonding, borrowing money, most legal experts in this state believe that that's not possible for our local government. North Carolina is leaving a lot of money on the table that will go to other states when we could be taking advantage of that and helping to build out better broadband access. We have incredible broadband deserts in this state and really insufficient service provided in large swaths of our state. So it is a very disappointing set of circumstances.

Christopher Mitchell: So if we go back and we think about podcasts that I had done with Katherine Rice and Jack [Cosort in 00:16:34] which we explored over two hours, not a short podcast, over two hours, the years that led up to the bill in 2011, that removed local authority that hemmed in Wilson and others. The major change from 2010 to 2011 was that Republicans took over the legislature and it's clear that without that happening, we would not have seen this kind of restriction. I think that might lead someone to assume that in 2021, it's the Republican party that's responsible for these restrictions. From what I understand, actually it seems like a majority of the Republicans in Raleigh would like to pass the law that you've advocated for that would enable public private partnerships. So can you just tell us a little bit about this dynamic? At this point, 87% of Americans are either like, "Yay, Republicans or Boo, Republicans. So people are very tribal, but this isn't that simple.


Erin Wynia: That's correct. This is the type of issue where when you talk with our state legislators, they see the problems on the ground too. They live in these areas, they understand the challenges, and they understand that we have relied now for a decade on 100% relying on the private sector to solve this problem. And there are still massive gaps in our ability to get good high-speed broadband to all North Carolinians. So they understand that. Last year, or I should say last session, it was two years ago now, the General Assembly proposed a bill called the NC Fiber Act that groups like mine supported. And it was really popular. We had over half of the House of Representatives sign-on to sponsor that bill and that included members from both parties. It was strongly bi-partisan. It advanced through one committee hearing and went no further. That tells you the type of opposition that I mentioned before that these large incumbent telecommunications companies have to this type of proposal and they were successful.

Erin Wynia: They're successful with the leadership. And I think the fact that there hasn't been movement now for a decade when the current Republican legislative leadership has been in charge, shows the type of influence that this industry brings to bear right now in our state.

Christopher Mitchell: Yeah. And we we've seen this at the national level as well. Unfortunately, in that, like I said, it blows my mind that not a single Republican in Arkansas dissented to this idea that given the state of broadband, they just needed all options on the table. And at the same time, just a week or two ago, we saw nationally a number of Republicans put forth a bill that would prohibit municipal broadband across almost the entire United States. And so, like I said, some people will come out of this and be like, "Oh, well, Republicans can't be trusted," when in fact my lesson is, is that there's a profound disconnect between some Republicans and their base. And I feel like we would all benefit if that disconnect was resolved.

Erin Wynia: I couldn't agree more. And I think, the more acute the problem becomes and the more vocal residents and business owners become, I think that's what helps to move the dial on this issue and move back against the opposition that's expressed by these large incumbent providers.


Christopher Mitchell: There's something I really wanted to cover, which is how do you react when someone, often people who don't follow this as closely, they would say, "The problem in North Carolina is just that a bunch of rural areas don't have service." The word rural does a lot of work. People sometimes include small population centers in that. Sometimes they're thinking of farms, but how do you react to that in light of what we were talking about earlier with towns that have a cable provider, that's just... It's not getting the job done

Erin Wynia: Well, right. I guess I would say that it just all depends on how you're defining good service. I think what we've seen, especially during the pandemic, is that our need for broadband far exceeds what these systems are capable of delivering. So we find that we have just simply very inadequate service. There are truly places in our state and across the nation that have little to no service availability. That is obviously a problem, but just as much of a problem are the large numbers of areas that don't have adequate broadband. They don't have enough bandwidth to do things like telemedicine or kids who are doing remote schooling from home, businesses that need to rely on better upload speeds. So there are, you're right. There's definitely two aspects to that problem. And we think that local governments could help. And so to come back to the policy solution that groups like mine have put forward, we've said if you allow local governments to lease their even existing assets to a private provider in the context of a public private partnership, that this could move the dial.

Erin Wynia: What we know is that there are communities out there all across the state that have paid for fiber, and they are using it for internal purposes, whether that means for their public safety communications or their traffic signal systems, or the meters on their water and electric systems. All of those assets are just sitting there waiting to be utilized in a more robust way to provide this service to their communities and our local governments right now because our state laws, are handcuffed.


Christopher Mitchell: We've talked about this with Alan Fitzpatrick some in other conversations as well with the River Street Networks folks and I think it is well worth covering that. I have a deep disagreement with people who think cities should not be able to provide retail service in the way that Wilson does. But I'm okay with that disagreement. And I think that if states want to limit that, it's pretty clear under the U.S. laws that we have right now, they can do that. But I just don't understand the idea that a city or a county cannot lease its own fiber in a way to enable private sector competition. If we really want to have competition, we should be enabling cities to lease fiber to make it easier for private investment to deliver services. And that's where I feel like there's just this really big disconnect that's... We can fight over whether or not it's appropriate for cities to do that and I will be doing that over and over again. I just don't understand how we're fighting over whether or not a city can lease out some fiber or conduit on a reasonable term.

Erin Wynia: I agree. And when I go to our state legislature and talk with individual members, they by and large tend to agree with that. So the problem is, is not a lack of education. It's not a lack of awareness of the problem. We simply face really big political obstacles right now that hold back this type of policy. It's a common sense policy that you're talking about, Chris.

Christopher Mitchell: I'm so glad you said that because this is one of the things I really like about you, several other people who are in positions like yours, you're strategic, right? Because there's people who are out there who really want to get better broadband and their sense is, "Well, we just have to educate people about this being important." And education is important. It has its roles. But that is not the barrier here. Like this is just a matter of certain companies have too much control over the leadership of the legislature. And so can you just spell that out briefly? Like, is that correct?

Erin Wynia: That seems to be the biggest obstacle that we can perceive right now. There's just no other way to explain how you can talk with the number of individuals that we talk to and get general support and then you don't see any movement on trying to enact these types of common sense policies.


Christopher Mitchell: Yeah. So that means that for people who are listening to this and who are motivated to do something, it's more important, I would say to talk to your local businesses, your local Chamber of Commerce, your local communities of faith, to have them be elevating that message. Because I feel like until there's a sense that the majority is threatened, that if Republicans don't do something on broadband that is more aggressive and actually moves the needle, that they would lose their majority. I don't think we're going to see most change.

Erin Wynia: Chris, what you're suggesting is a fantastic way for people to make a difference on this issue and I definitely encourage anybody who cares about having these common sense policies enacted to get that message being repeated by leaders in your community, local leaders, whether they're business or faith leaders [inaudible 00:25:52] or otherwise. Maybe it's the president of the local hospital or the principal of your local school. Those are all people who are well positioned to try to elevate the issue in a public way. I think that's what's needed right now.

Christopher Mitchell: Great. Let me ask you something. What gives you hope? We're in the middle of some trying times. You're more likely to hear stories about people not having service than all of the miracles that the service can actually to bring to folks. So what keeps you waking up and energized and having a smile on your face?

Erin Wynia: I think that, out of every sort of crisis situation that we find ourselves in, in the democracy of the United States of America, it does tend to move to big policy solutions. And that does give me hope. There is no question that the pandemic has been that defining crisis event for broadband access. It just laid bare what had been happening all along and made it much more acute and crystallized, and really focused for people to understand what was going on. So I think that as time goes on, and if we don't have policy change, I think we're likely to see very little change on the ground that does give me hope. It'll just become inevitable that we have to consider other solutions like allowing our local governments to play a role in this.


Christopher Mitchell: I feel like for the first six months of the pandemic, I was kind of waiting to see the motivation of this issue build up. And then for the second three or four months, like the last, I would say October, November, December, I'm looking around and being like, "I think people aren't really doing enough." You have millions of kids who are effectively not able to attend school. You have all kinds of people who are losing their livelihoods. And I was just disappointed. And then for the past several weeks, months, I mean, I don't know. Maybe people are so focused on the election and the president that they feel more freed up to think of this. Or maybe it's just there's this lag. But this is what I was waiting for is like, I feel like local officials are taking it more seriously. I see states like Arkansas taking it more seriously. I feel like there's a new urgency in D.C. that I'm still nervous about in some ways. But it does seem like stuff's happening now.

Erin Wynia: Right, Chris. I hope that momentum that states like Arkansas have started, I hope that can continue and roll across the country to states like ours. Certainly it's great for them and I think as time goes on and we can see the difference in a place like Arkansas, I think others will look to emulate that.

Christopher Mitchell: Thank you, Erin. It's always great to... [inaudible 00:28:47] gets to listen to the audio, but I got to see you as we talk. So it's great to have you on the show again.

Erin Wynia: Thank you, Chris. It was really great to be here and to speak with you and to see you over Zoom and I look forward to next time.


Ry Marcattilio-McCracken: That was Chris talking with Erin Wynia of the North Carolina League of Municipalities. Thanks for tuning into this episode in our Why North Carolina Broadband Matters Podcast series and for listening to the Community Broadband Bits podcast from the Institute for Local Self-reliance. Remember to follow Christopher on Twitter. His handle is @communitynets, and if you follow @NCheartsGB on Twitter, you'll tap into all the NC Broadband Matters material. We want to thank Shane Ivers of for the series music, What's The Angle licensed through Creative Commons. And we want to thank you for listening. Until next time.