Transcript: Community Broadband Bits Episode 368

This is the transcript for episode 368 of the Community Broadband Bits podcast. In this episode, Jess Del Fiacco interviews Christopher about the state of municipal broadband preemption laws across the country. They discusses changes to our count, how our analysis of preemption differs from's reporting, and which states may enact or remove restrictive laws. Listen to the episode, or read the transcript below.



Christopher Mitchell: I say legislatures really do want to see more investment and are recognizing that limiting investment is not the way to get more investment.

Lisa Gonzalez: Welcome to episode 368 of the Community Broadband Bits podcast from the Institute for Local Self-Reliance. I'm Lisa Gonzalez. There's a lot of local internet infrastructure investment going on these days, but in some states, local communities have to overcome state laws that make investment more difficult and in some cases may even ban that investment. If your community is looking into a municipal network solution to improve local connectivity, you may have seen conflicting reports about whether or not your state maintains barriers to local community networks. If you've been researching recently and noticed that several states have made changes, you may be more confused than ever. In this episode of the podcast, Christopher and our communications specialist, Jess Del Fiacco, address that confusion. They talk about how different sources report on what is a barrier and what we define as barriers. We've made some changes to our list this year. Christopher explains why we reduced the number of states that we consider maintaining preemptive laws to local telecommunications authority. If you want to learn more details about the remaining 19 states with preemptions in place, we recommend checking out's resource library. Their document titled "State Restrictions on Community Broadband Services or Other Public Communications Initiatives" offers a state by state explanation of each preemptive barrier. We'll also provide a link on the podcast page. Now here's Christopher and Jess on state preemption.

Christopher Mitchell: Welcome to another episode of the ⁠—

Jess Del Fiacco: Hold on Chris. I think we could improve this intro a little bit.

Christopher Mitchell: Not Possible.

Jess Del Fiacco: Welcome to the Community Broadband Bits podcast. This is your host Jess Del Fiacco at the Institute for Local Self-Reliance in Minneapolis.

Christopher Mitchell: I don't think Travis is going to like that.

Jess Del Fiacco: Well too bad we don't have an audience of one here for the podcast.

Christopher Mitchell: We have an audience of one person who has ever commented on the intro.

Jess Del Fiacco: Maybe we can double that one day. I'm here to talk to Chris about state restrictions on community broadband efforts.

Christopher Mitchell: That's right because there's a little bit of confusion out there, and we thought it was a good time to set the record straight and also maybe talk a little bit more in depth about the things that we talk about everyday in the office but probably you all don't think about as much or just, you know, you may be wondering why we have made certain decisions and thought this was a good time to do it. And our friend Jim Baller, the attorney who was there for the very first municipal broadband network, recently revised his list of the barriers to municipal broadband, and so we tried to time this to come out and build on that.

Jess Del Fiacco: Yeah. So the number that we're working with here is 19 states with these restrictions.

Christopher Mitchell: That is our count.

Jess Del Fiacco: And how does this differ from the BroadbandNow list? Chris, could we get into that a little?

Christopher Mitchell: Sure. So BroadbandNow,, is a very good organization that I like, and we regularly cite them. They've done a really good job of compiling information, often from flawed places, so if you find errors, it's not their fault. The fact is that they are combining lots of different data sets that have errors in them. They've recently done a report about municipal broadband preemption. And I very much support their efforts, but they've come up with something which I think has been confusing people, which is 26 states that, I might say, get in the way of municipal broadband. And so that number, 26, has been popping around in a couple of places. And again, this was kind of a motivation for us to do this, was that we thought it was worth revisiting our list, talking about what we're measuring, and saying that we don't think that that 26 number is the one that we should use because I think it's a little bit less accurate for what most of us mean when we're talking about these kinds of barriers.

Jess Del Fiacco: So what exactly do we mean? What's our definition?

Christopher Mitchell: Oh, the hard questions starting so early. So I think our question is where states are uniquely putting limits on local governments that want to improve Internet access. You know, it's where the state is using its power to limit what cities can do legally, what their authority is. You know, I don't wanna go too far down this, I think fascinating, history of cities and where they get their powers from and this and that. But cities are considered subdivisions of states and broadly, there are two categories of states, a Dillon's rule state or a home rule state. In practice, there's all kinds of shades in between. It's very confusing for different sizes of cities in many cases. But, the question is whether a city can just do what it wants or whether it has to seek authorization from the state. And so this is already an area in which it's complicated because if you're in a Dillon rule state, then if you want to do anything like municipal broadband, you may have to get permission from the state. Now, even if you're a home rule city, which would mean you have broader powers, if the state says you can't do something, then you can't do that thing. And so again, we're looking, in our list of 19, at states that have emphatically said, cities cannot do this. And so, you know, there may be states in which a city functionally can't do the same thing. We haven't done that level of analysis to know if a given state has that sort of a situation. And in some ways I think it's a little bit beside the point because this gets into a whole big discussion about just what are the rights of cities, which I generally think should be more significant. I think in a federalist society such as ours, we should have much broader powers at the local level.

Jess Del Fiacco: So what are some of the states that we took off of our list to get it down to that 19?

Christopher Mitchell: There's two that we've taken off our list. Well, in effect, one came off our list, but really two came off of Jim's list. Boy, this is so much more complicated than I thought it was going to be, and I knew it'd be a little bit complicated. We never shaded in California on our official map because California had this provision that rural areas where they had what was called a community service district, they had very strict rules that basically prohibited community service districts from building municipal broadband. It was just not feasible under those rules, but almost every city in California could do it. And so, we didn't want to confuse people by suggesting there was a barrier in California to the vast majority of the people. Now under AB 1999 last year, we saw that that one barrier in California was removed, and so we would say there are no barriers in California now. So that was one that came off of Jim's list and came off of our list, but our map had never been shaded red so people might not have noticed that before. Now we had shaded Colorado red previously because Colorado has some strict rules that cities can reclaim local authority from, in terms of cities can basically regain their local authority by passing a referendum. And we've long thought that that was not only discouraging and counter productive, but a legitimate barrier in the sense that it was distracting cities from being able to build a network. But there's been more than 100 of these referendums. The cities have won every one of those in recent years. I only know of one in which the city did not win, and then it went back two years later ⁠— this is Longmont ⁠— and they did pass it. And so, even though I still think this is a barrier, it is unnecessary, it is counterproductive, it doesn't feel right to suggest that Colorado has some kind of significant barrier that cities and counties should worry too much about. The legislature should clean it up. They probably won't. The cable and telcos will fight hard to keep it or to get some sort of concession, if we did get rid of it, that would make things worse. And so, Jim Baller and I in talking, we both agreed that Colorado should not be considered to have a barrier in practice in that sense because it's really not had a strong effect in preventing cities from moving forward.

Jess Del Fiacco: Yeah. And then there was a few other states where the BroadbandNow list lists them as having these restrictions, but they're not restrictions that we think are actually limiting the authority to build broadband networks.

Christopher Mitchell: That's right. And so, many of these come down to things that I would say that states do or have done that I think are unwise and are bad in terms of encouraging investment in broadband and counterproductive. But you know, for instance, and I don't think these actually all come up, but when Michigan, Tennessee, and states like Virginia create a pot of broadband subsidy money but make it ineligible to municipal networks, I think that's bad, I think that's counterproductive, but I don't think that is a state really limiting local authority. I think it's foolish, you know, but I don't want cities to think, "Oh, I can't do this," you know, because I see my state has a red mark on it when in fact they can do things. It's just that they don't have access to all of the benefits that the private sector does. And that's a fact of life in municipal broadband networks is that fundamentally you are often at a disadvantage relative to rivals in the market.

Jess Del Fiacco: Sure. Massachusetts and Wyoming are two of those states that restrict state funding to municipal networks, I believe.

Christopher Mitchell: Right. And Massachusetts is actually a little bit more complicated in that you're actually correct in that that's how they were categorized by BroadbandNow. At the same time, Massachusetts has given a lot of money to communities, particularly in the western part of the state, to build municipal networks, and so I think it's incorrect to suggest that Massachusetts is on balance discouraging municipal networks. I'm sure that they could make it easier, I'm sure that they could, you know, make it a more attractive, but I don't think that Massachusetts should be considered as having a barrier against municipal networks. Wyoming, similarly ⁠— I mean we did a podcast with the mayor of Cheyenne, I believe it was last year. She was terrific talking about what happened with legislation that would have been really good for encouraging cities to get more involved in encouraging competition and investment, but CenturyLink kind of took that process over using its lobbying power in I would say, you know, some decisions made by elected officials that I wouldn't have agreed with in Wyoming, in order to have them shape the program. Now that said, that program, even though it's not nearly as friendly to municipalities, does appear to be working out in favor of more investment from local entities. I've talked with a couple of ISPs that seem to be pretty happy with the direction that Wyoming program is going. The world's a complicated place, and so even though I wouldn't have encouraged those, I will also wanted to say that Wyoming, you know, it seems like it's a program that is resulting in more investment in ways that we would like to see.

Jess Del Fiacco: So another state that has these restrictions that aren't really restrictions is Oregon, which restricts a statewide network, I believe.

Christopher Mitchell: Right. There was a discussion, I think entirely reasonable, within Oregon, if I remember correctly ⁠— boy, sometimes I just think, wow, someone who actually really knows what's going on in Oregon really closely might think, "You don't know what you're talking about, Chris." I'm sure that's not the first time someone's had that thought. But in Oregon, if I remember correctly, maybe the governor, maybe others in the state legislature recognized that the state spends a lot of money on broadband-related services and that if the state was to build its own network and make it open, they could encourage more middle mile access to be able to make it easier to get across the state. So if you're in a rural area, lower your operating costs but also lower the capital costs of connecting to the wider Internet. Some of the rural and independent providers that are providing those services today were really upset at that and pushed against it, and that may have resulted in legislation that the state decided not to do it or maybe to bind the hands in the future of doing it. But I don't think that's a restriction of localities from being able to move forward, and I certainly don't see the communities ⁠— you know, if you look at the municipal broadband movement in Portland, in Multnomah County more broadly, people that are working toward this in the areas surrounding the Portland metro, they don't seem to think that there's a restriction in the state from these kinds of networks.

Jess Del Fiacco: Iowa has, I think, a similar situation to Colorado where municipalities have to hold a referendum before they can start building.

Christopher Mitchell: That's right. And this was one of the areas in which I've always been a little bit annoyed at my lack of intellectual consistency in that we considered a referendum for 50% in Colorado to be a barrier, but not in Iowa. And in part that was, again, Jim Baller and I talking about this over the years. We've long agreed that in Iowa there was an established process that it seemed cities were able to navigate, and it was hard to say that it was a significant discouragement because so many municipalities had moved forward. There's a lot of municipal networks in Iowa, so we had not listed Iowa as having a barrier previously because of that reasoning. And we continue to believe that it's not really a barrier in the same way that in Minnesota where you're effectively required to have a super majority vote or, you know, a state like North Carolina where you just can't do it. And so, we felt that Iowa's restrictions, though I think counterproductive for encouraging investment and competition, just don't rise to the level of being a barrier that we should be too worried about.

Jess Del Fiacco: And then one last one here.

Christopher Mitchell: Oh man, I was hoping we could do this all day.

Jess Del Fiacco: Connecticut, where local governments can't access space on utility poles for free. Correct?

Christopher Mitchell: Right. So, you know, Connecticut had this thing, and this is a really wonderful deep story that I don't remember if we've captured on this podcast or not before. I think we may have. But Senator Beth Bye in Connecticut, state senator, had changed the Connecticut law because previously Connecticut municipalities had what's called the free gain, which was that they could have a position on the telephone utility pole in which they could attach their own wires for public safety purposes and they did not have to pay for that. And she changed the law or she led an effort to change the law that said "for any purpose," so that municipalities could build a network and use this free spot on the pole. Now I should just pause for a second to note that Steve Ross and others from Broadband Bommunities would argue that this is not good policy, that in fact you shouldn't give away free space on utility poles, so I'll just note that for a second. But nonetheless, the law is pretty clear in Connecticut that the city should get a free space. The Connecticut state regulatory authority, PURA, the Public Utility Regulatory Agency, I'm guessing, or Authority.

Jess Del Fiacco: Sounds right.

Christopher Mitchell: Yeah. They decided they didn't much like the law and they read it to say that cities did not get a free space for any reason, and that is an ongoing matter of dispute. It just so happens that Comcast is very close with the governor of Connecticut and is very powerful. Frontier is headquartered in Connecticut, for reasons beyond me. For some reason, people in the state government of Connecticut think that it's important to keep Frontier happy as they refuse to invest in the state of Connecticut. But so, there's an ongoing argument as to whether or not this law should be followed by the people who are required to uphold the laws of Connecticut. But nonetheless, if a Connecticut municipality wants to pay to be on the pole, I think that would follow the same processes. And so therefore, it's just not a barrier against municipal networks in a way that I feel like is relevant now. You know, if you go back and look at this list from BroadbandNow and you just think of it as 26 states that are generally bending over backwards to make life a little bit harder for municipal networks in favor of the companies that spend a lot of money lobbying them, well I think I wouldn't dispute much of that list. Although I think it's 25 because again California was on their list. And they have corrected their report to note that that law is not in effect, but the number 26 just keeps still popping up.

Jess Del Fiacco: Haunting you.

Christopher Mitchell: So I guess it should be 25. But yeah, I think that we should focus on the 19 states and that's where our efforts should be because I just think it's a much bigger problem than the general states that are just trying to find minor ways of inconveniencing municipalities.

Jess Del Fiacco: Okay. So back to these 19 states then. These barriers ⁠— where did they come from?

Christopher Mitchell: Generally from the cable and telephone companies, and not only that, the big ones. I mean, I would love it to live in a country in which the small telephone and cable companies had much more power in state legislatures. I may disagree with them on a number of things, but I think their voice should be louder and the voices of Comcast, Charter, and AT&T and those big companies, really AT&T especially, should be a lot quieter. And so, I do not think we would see nearly this many preemptions if it was just the smaller companies that were saying, "We'd prefer not to deal with cities doing this." It's really companies like AT&T and Comcast and Verizon that have put a lot of money into this. They have tons of organizations that churn out papers that justify limiting municipal investment that have deeply flawed arguments, and they have the power to just, you know, say these things. And they'll get caught lying, and then, you know, what are you going to do if you're a state rep? You're going to stop taking meetings with AT&T? I don't think so. You know, so they can say whatever they want and they get away with it. That's where these bills come from. They're not serious arguments that would ever win an actual debate, but they have money and power on their side.

Jess Del Fiacco: So who is able to remove them? Have we seen any pushback from state leaders or does it always require a grassroots effort from residents?

Christopher Mitchell: In California, we have officially rolled back the bill, actually the law, that had preempted the community service districts, and that was led by assembly member Chau, who did that. You know, we certainly supported him. Electric Frontier Foundation supported him. Ernesto Falcone is really focused on a lot of these issues for EFF, great organization, and so, you know, they led that fight. And there was very little resistance. AT&T and others, I think, were more focused on net neutrality in that cycle, so we have a positive example there. In Arkansas we did an interview with Senator Breanne Davis, who is a Republican member of the women's caucus, actually the Republican women's caucus, of the Senate in Arkansas, and they rolled back their preemption. At first, they were going to be very ambitious with it, and then they decided to roll it back a little bit, after negotiating with industry, with the big carriers in particular. And their goal was to try to really catch the attention of the industry to say, "We have a real problem. We need to have all hands on deck. We need much more investment in Arkansas because we need high quality Internet access so people can access Medicaid, so we have education improvements, and things like that." And so that's a different model. Now in North Carolina, you know, we've been very involved in supporting the North Carolina League of Municipalities, in which they've had a very smart campaign focused not on removing the preemption because a strong majority of the state legislators in Raleigh, I believe, do not want to fully remove the preemption. But we've argued and believe that if you were to simply roll the preemption back a little bit to allow cities to partner with local cooperatives and independent ISP companies like Hotwire in Salisbury, like Open Broadband, like RiverStreet networks coming from the Wilkes co-op and several others that are making these kinds of investments in North Carolina, we could supercharge it, if the local governments were able to engage in partnerships and not necessarily to build a network of their own, the way Wilson has. You know, I continue to believe that cities should have that option, but I don't live in North Carolina, I don't get to vote, and so I respect the fact that they disagree. And I work to change their minds, but in the meantime, we are focused on what's reasonable to get done to improve rural North Carolina investments. So, you know, those are the three areas in which we see ongoing efforts, but fundamentally we need people to be more energized. People need to reach out to their elected officials on this because elected officials hear from Comcast and AT&T on a regular basis. There's a lot of lobbyists. I mean, I can't tell you the number of time I'm in Florida, Texas, I talk to people and they're like, "Yeah, during session AT&T has a hundred people walking around working on AT&T's agenda." A hundred people.

Jess Del Fiacco: So would you say that those lobbyists are the biggest challenge that states face trying to get rid of these restrictions?

Christopher Mitchell: Yeah, and here's why: because it's really hard to do something positive. You know, for us to stop the preemption that had been tried in recent years, you can create a small dedicated coalition and you can stop something that you think is wrong. To pass something, you need to overcome the ability of the other side to do that. I mean, for Comcast or AT&T, they need to, like, convince a subcommittee chairperson or a committee chairperson not to bring a bill up or, you know, convince the speaker of the house just don't hear this bill, send the word down that it's dead. And so, you know, we need significant grassroots support to overcome that kind of of power. So it's relatively easy in legislation to stop something. It's incredibly difficult ⁠— it's not just a matter of having 51 percent on your side to remove preemption. You'd actually need to have a much bigger coalition. And we see this in North Carolina where a strong majority of members of the General Assembly have cosponsored the bill, and leadership refuses to let it move despite the fact that a majority of Republicans would like to vote yes on this bill. So anyway, I know that not everyone who listens to this cares as much about about politics, but it's a significant uphill battle and frankly, it's one that I'm excited to be having. I mean, we don't do very much lobbying here. We're a 501(c)(3), which means if you give us money, you can deduct it from your taxes because we don't do much lobbying.

Jess Del Fiacco: By the way, just throw that in there.

Christopher Mitchell: Right, That's But we do a lot of education activities and develop research that is important to make the case for why these policies should change.

Jess Del Fiacco: So Chris, if you had a magic wand and you could wave away these restrictions in any state ⁠—

Christopher Mitchell: Did Lisa tell you about my magic wand?

Jess Del Fiacco: No. I guess you're just a magic wand kind of person.

Christopher Mitchell: If I use it too often, people get suspicious

Jess Del Fiacco: That you're a wizard, or what?

Christopher Mitchell: Yeah, I mean, when you look at my amazing accomplishments, you have to think there's some kind of magic.

Jess Del Fiacco: There's some dark magic going on in this office.

Christopher Mitchell: [unitelligible] sit down.

Jess Del Fiacco: Anyways. Which state would you start in? Is there one with potential that you think could be unleashed by lifting these restrictions?

Christopher Mitchell: Well, I do like working in North Carolina and in part because there's such an engaged community, I mean, you look at the groups like NC Hearts Gigabit, North Carolina League of Municipalities, the Association of Counties, a lot of local groups, local businesses — you know, I name check Catharine Rice, one of the people that I worked with early in my years at ILSR, getting to know her and the arguments against preemption as she worked so hard to preserve local internet choice in North Carolina. And so, I like working North Carolina. In part also, I mean, it's a state that is very strong on preemption. The legislature there has regularly overruled local authority on matters, and I think if we can demonstrate that North Carolina recognizes that there are matters in which we need to return power to local authority, that's a pretty powerful statement for everywhere. So, you know, I think that's a good place. It really depends on where movement is happening. Certainly we'd like to spend more time working in Arkansas now that we see there's so much concern. Arkansas is a state that is ranked relatively low comparatively in Internet statistics and in a number of other statistics but has a lot of investment. I mean, there's several municipalities that are doing great things, there's electric co-ops that are making a lot of investment, and I think it's a place that also recognizes it just cannot count on massive corporations. As long as I'm just mentioning this I'd like to thow out there that just a place I like working in in general is Maine. They don't have any preemption, but they're doing some really smart things.

Jess Del Fiacco: You just want to go on a trip?

Christopher Mitchell: Yeah. I mean, I love going to Maine. My colleague Stacy Mitchell, our boss Stacy Mitchell, is out there. But whenever I think about states I like working in, Maine is, like Arkansas, a state that recognizes the big corporations will not prioritize it. It's just not gonna happen. The big companies are focused on, you know, the, the heavily populated coasts. They're focused on just areas that don't resonate like that, whereas Arkansas, Maine, you know, a number of states that are often neglected, they have more of a self-reliant streak, and we want to encourage that and build on it.

Jess Del Fiacco: On the flip side, can you think of any states where there might be new restrictions put in place?

Christopher Mitchell: Well, I worry about Virginia. You know, even as we see a movement to try to roll back the preemption that is there, there is an ongoing effort to try to create more limits. I think that's in part because of the success of people who are making a big difference in Virginia, whether that's the eastern shore, where we see a lot of the eastern shore connected with a publicly-owned authority network. You know, Frank Smith in Roanoke Valley is certainly making a difference there. There's a lot of local networks. Danville seems to be doing very well. I remember when the first time I went to Danville, I think it had the highest unemployment in Virginia, and it seems like a lot of businesses have moved to Danville in part because of the network they've built. And so, I don't know if that's why. Sometimes you can't tell from afar why people within a given state may be pushing for these kinds of restrictions, but it's come up a few times and I worry about that. I worry about Michigan, where we've certainly seen efforts to limit it. There's several communities in Michigan that are looking at municipal broadband and some of the, you know, groups that are very much in favor of the big incumbents, that take money from them or simply are opposed to government generally, are working hard to try to stop them from building these kinds of networks. So, it's another one that I worry about. But in general, you know, I don't really fear that a legislature's really going to enact these so much as I don't relish the idea of wasting my time fighting them because I think at this point people — look forward to me correcting this in six months and being very disappointed, but the state legislatures really do want to see more investment and are recognizing that limiting investment is not the way to get more investment. You know, whenever we do have to fight these things, we try to make it very painful on the other side by not just fighting against the preemption but by using it as an effort to get into the media to make the case for more local authority and more local investment. I think that's one of the reasons we've seen fewer attacks like this is because the cable companies increasingly recognize when they bring this up, they look bad and we get more air time. And so, if they want to keep me off the airwaves, they could just not create controversies and then —

Jess Del Fiacco: And what greater motivation is there?

Christopher Mitchell: Right. Then, my communications specialist has to stay up late trying to figure out how to get me airtime.

Jess Del Fiacco: So that really goes into my final question, which is it's been status quo for a while, this number. Do you think we might see a whole bunch of restrictions being lifted? Do you feel like there's any kind of generating force happening behind this movement?

Christopher Mitchell: I think we could see the dam break. Also, I mean, this is a time of unpredictability in Washington and so Anna Eshoo, a representative, a US rep from the silicon valley area, is first of all a true leader on a lot of broadband policy that I agree with, but is advancing efforts for the federal government to say states can't preempt local governments. And so, that's not something that's going to pass in this session I don't think, but could lay the groundwork for a future congress to take it up. They very nearly passed it in 2005, I believe it was, when Senator McCain at that time was a champion of it and strongly believed in it. And I can imagine that coming back, as we see elected officials trying to do something — I mean, this is something pretty common that we see, which is that this is a hard problem to solve. And not only that, it's a hard problem to solve and within an election cycle, which is a motivation for elected officials. So if elected officials are looking around for something that they can then say, "I did this thing on broadband," and suddenly they start thinking, "If we just repeal this prohibition, I can tell people I'm doing something to encourage investment in broadband." Well, then I could see some of these things changing pretty quickly, and that would be terrific. But right now, I'm just happy that we're having this conversation because several years ago it didn't seem possible under those terms at that time to imagine where enough elected officials would turn against Comcast and AT&T in order to restore local authority.

Jess Del Fiacco: Well, thanks for being my guest today, Chris.

Christopher Mitchell: Thank you for for hosting. I enjoyed your introduction, although I don't know, I think it wasn't silly enough.

Jess Del Fiacco: Some of us are trying to be professionals in this office, Chris.

Lisa Gonzalez: That was Christopher and our communications specialist, Jess Del Fiacco, reviewing remaining state laws that restrict local internet infrastructure investment. We have transcripts for this and other podcasts available at Email us at with your ideas for the show. Follow Chris on Twitter. His handle is @communitynets. Follow stories on Twitter. The handle is @muninetworks. Subscribe to this podcast and the other podcasts from ILSR, Building Local Power and the Local Energy Rules podcast. You can access them wherever you get your podcasts. You can catch the latest important research from all of our initiatives if you subscribe to our monthly newsletter at While you're there, please take a moment to donate. Your support in any amount helps keep us going. Thank you to Arne Huseby for the song Warm Duck Shuffle, licensed through Creative Commons, and thank you for listening to episode 368 of the Community Broadband Bits podcast.