Senator Janice Bowling and Representative Kevin Brooks have decided to table their legislative efforts to remove state restrictions in Tennessee. While backing for SB 1134 and HB 1303 was growing beyond the walls of the state Capitol, the sponsors decided to shore up stronger legislative support rather than risk derailing the bill entirely. 

Brooks told the Tennessean:

"We have had a lot of good progress, and we don't want to throw it all away," Brooks said. The votes were not there in the Senate, and he and co-sponsor state Sen. Janice Bowling, R-Tullahoma, have asked to roll the bill to the beginning of the 2016 calendar, giving them more time to garner support from their colleagues.

"We have pressed the pause button to keep it alive," Brooks said.

Communities around the state, including Bristol, went on record in support of the bill. The Tennessee Farm Bureau, representing 600,000 members, also backed the legislation. 

Energized by the recent FCC decision nullifying state laws restricting Chattanooga from expanding, Bowling, Brooks, and other local leaders thought the time was right to once again try to eliminate state barriers. The FCC decision has already been formerly challenged by Tennessee's Attorney General with the support of the Governor. Rather than depend on federal intervention to establish an environment that will encourage connectivity, SB 1134 and/or its companion HB 1303 would have solved the problem on the home front.

A year ago, the FCC accepted applications from entities seeking Connect America funds for rural broadband experiments. After provisional awards and some eliminations, Chanute's FTTH project, Chattanooga's EPB, and a number of additional cooperatives are now on the list of provisional winners reports Telecompetitor.

According to the article, $27 million became available when 16 entities were eliminated for various reasons.

A recent Chanute Tribune article reports that the city's expected award will be approximately $508,000 if it passes the FCC's post-selection process. Mikel Kline, a consultant working closely with the city on its FTTH project told the Tribune:

It is Kline’s understanding that this $508,467 would be cost support for the city’s Fiber to the Home network over the next six years. It requires the city to become an eligible telecommunications carrier, and to finance and construct the fiber network.

This money can be used to pay operational costs or offset a portion of the debt on the city’s investment in the local infrastructure over the next six years.

Remember that Chanute has developed its fiber infrastructure incrementally over more than two decades. The community is moving ahead with its FTTH project to share the benefits of fiber with residents and more businesses after bringing better connectivity to schools, municipal facilities, and a growing number of businesses. 

Recently, the city applied for and received state approval to bond for deployment costs. A 1947 state law required the application be filed with the Kansas Corporation Commission, the state entity concerned with utility regulations. According to Kline, the city has also applied for eligible telecommunications carrier (ETC) status. This designation will allow the city, as a common telecommunications carrier, to obtain Kansas Universal Services Funds.

The State of Tennessee has filed the first appeal to the recent FCC Opinion and Order [PDF] reducing state barriers to municipal broadband. Governor Bill Haslam appears determined to keep his constituents in the Internet slow lane.

The state filed the short petition on March 20th arguing [view the petition on Scribd.]:

The State of Tennessee, as a sovereign and a party to the proceeding below, is aggrieved and seeks relief on the grounds that the Order: (1) is contrary to the United States Constitution; (2) is in excess of the Commission’s authority; (3) is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act; and (4) is otherwise contrary to law.

Haslam expressed his intention to explore the possibility of filing the appeal earlier this month reported the Times Free Press. In February, the Governor and Tennessee Attorney General Herbert Slatery signed a letter from a number of state officials to the FCC urging them not to change state law. U.S. Rep from Tennessee Marsha Blackburn and her Senate counterpart Thom Tillis introduced legislation to fight the Order just days after the FCC decision.

State Senator Janice Bowling, a long time advocate for local choice, and Rep. Kevin Brooks have taken the opposite perspective, introducing state legislation to remove restrictions to achieve the same result as the FCC Order with no federal intervention. Their bill has been publicly supported by the state Farm Bureau and local municipalities such as the City of Bristol.

The FCC has found that it has the authority to remove aspects of Tennessee and North Carolina law that limit local authority to build or expand Internet networks. In short, states seem to retain the authority to restrict municipalities from offering service at all. However, if states allow local governments to offer services, then the FCC has the power to determine whether any limitations on how they do it are a barrier to the deployment of advanced telecommunications services per its authority in section 706 of the Telecommunications Act.

The FCC has removed a restriction in Tennessee law that prevented municipalities with fiber networks from expanding to serve their neighbors, per a petition from Chattanooga.

In North Carolina, the FCC has removed multiple aspects of a 2011 law, HB 129, that effectively outlawed municipal networks by presenting local governments with a thicket of red tape, including territorial restrictions on existing networks. The city of Wilson had petitioned the FCC for this intervention. 

Listen to our podcast with Jim Baller about this decision.

See the Institute for Local Self-Reliance Press Release on the Opinion and Order for more. If you don't want to read the full order, we pulled out some key paragraphs and sorted them for your benefit!

Key Paragraphs in the FCC Decision

We selected some of the most important passages with references to the original Memorandum Opinion and Order. Look for these passages as you read the original FCC doc [PDF].

Communities Around Chattanooga and Wilson Need Better Connectivity:

43. Numerous commenters favor preemption because they wish to obtain service from EPB or Wilson but are unable to do so, and the maps and data discussed above illustrate that communities surrounding EPB’s and Wilson’s current areas of broadband service have far fewer choices for advanced telecommunications capability than the national average. This suggests that further expansion could generate improved levels of investment and competition in these locations. (pp 23-24)

As the time approached for FCC Commissioners to choose to allow Wilson and Chattanooga to serve surrounding communities, leaders from municipalities with publicly owned networks shared their experiences. Jill Boudreau, Mayor of Mount Vernon, Washington, published her community's experience with their muni in GoSkagit.com. 

As in the recent testimonial from Opelika Mayor Gary Fuller, Mayor Boudreau described how Mount Vernon's network has created a quality of life where high-tech has enhanced local medicine, encouraged new businesses, and created and environment rich with competition.

Mount Vernon's open access network provides infrastructure for nine service providers. Some of these providers offer services only to businesses, while others also serve government, retail providers, and specific industries such as the medical community. Hundreds of public and private customers receive fast, affordable, reliable connectivity through these providers and the city's publicly owned network.

We first introduced you to Mount Vernon in 2013. The community began deployment in 1995 and have added incrementally to the network to serve nearby Burlington and the Port of Skagit. Government facilities, schools, hospitals, and businesses save millions while utilizing top-notch technology. Businesses have relocated to the area to take advantage of the network and enjoy the high quality of life in the relatively affordable area with its abundance of outdoor recreation.

Mayor Boudreau recognizes that Mount Vernon's success may not be easy to come by for every community but believes each should have the ability to decide that for themselves. She writes:

The Tennessee Farm Bureau Association recently put its support behind state legislation from Senator Janice Bowling and Rep. Kevin Brooks reports the Times Free Press. 

The Bureau told the Times Free Press:

"Our members are hungry to have broadband," said Rhedonna Rose, executive vice president of the 600,000-member Tennessee Farm Bureau Federation. "We represent a lot of Tennesseans in very rural areas of the state who are frustrated that they don't have high-speed Internet."

SB 1134 and its companion HB 1303 are brief and direct, allowing municipal power distributors the right to extend Internet access beyond current geographic boundaries established by state barriers. Bradley County, one of EPB's neighbors, would like to have EPB expand service to them but state laws, backed by large corporate incumbents not interested in serving Bradley, forbid expansion.

According to a Chattanoogan article, EPB and Bradley County are planning for the expansion which will serve about 1,000 people; about 800 of those people rely on dial-up for Internet access. From the Chattanoogan article:

“We have people who live within half a mile of our service territory … who have nothing but dial-up, and that doesn’t make any sense” [EPB CEO Harold] DePriest said. “In a lot of cases we can get to those areas fairly easily.”

The recent FCC decision changed the landscape in Tennessee and North Carolina for now but policy advocates, telecommunications attorneys, and community leaders are braced for legal challenges. In a Times Free Press article from last week, Tennessee Republican Governor Bill Haslam stated that his office would consider appealing the FCC decision. 

In light of the recent FCC decision to restore some local telecommunications authority in Tennessee and North Carolina, it is time to examine the details. Join leading telecom attorneys Jim Baller and Marty Stern as they host a live BroadbandUS.TV webcast on March 13th to discuss Title II, network neutrality, and new possibilities for munis.

The event begins at 1 p.m. ET and is titled FCC Takes Charge - Net Neutrality and Muni Broadband: New Title II Rules for Broadband Access and Preempting State Limits on Municipal Networks. Registration is available at the BroadbandUS.TV website. More info about the event:

In this special edition of Broadband US TV we examine two historic decisions from the FCC: The decision to classify broadband access as a Title II service, and the preemption of state laws in North Carolina and Tennessee that placed limits on municipal broadband networks.  We’ll dive into these issues with two panels of prominent players and experts on both sides of these white hot issues.  Hear details about the rulings, predictions on implementation and court challenges, and what these rulings are likely to portend for broadband in America over the next year and beyond.  On the muni broadband panel, our own Jim Baller, lead counsel to Chattanooga and Wilson before the FCC, will go from host to panelist and mix it up with our other guests.  We’ll be sure not to cut him any slack.

Guests will be:

Title II and Broadband  -- Pipedream or New Reality                                     

• Craig Aaron, President, Free Press 
• Chris Lewis, VP, Government Affairs, Public Knowledge
• Sarah Morris, Senior Policy Counsel, New America Foundation, Open Technology Initiative 
• Hank Hultquist, VP, Federal Regulatory, AT&T
• Barbara Esbin, Outside Counsel, American Cable Association
• Jonathan Banks, Senior VP, Law and Policy, US Telecom Association 

Last week, the FCC made history when it chose to restore local telecommunications authority by nullifying state barriers in Tennessee and North Carolina. Waiting in the wings were Rep. Marsha Blackburn and Senator Thom Tillis from Tennessee and North Carolina respectively, with their legislation to cut off the FCC at the knees. [A PDF of the draft legislation is available online.]

Readers will remember Blackburn from last year. She introduced a similar measure in the form of an amendment to an appropriations bill. Blackburn has repeatedly attributed her attempts to block local authority to her mission to preserve the rights of states. A Broadcasting and Cable article quoted her:

“The FCC’s decision to grant the petitions of Chattanooga, Tennessee and Wilson, North Carolina is a troubling power grab,” Blackburn said. “States are sovereign entities that have Constitutional rights, which should be respected rather than trampled upon. They know best how to manage their limited taxpayer dollars and financial ventures."

Thom Tillis, the other half of this Dystopian Duo, released a statement just hours after the FCC decision:

“Representative Blackburn and I recognize the need for Congress to step in and take action to keep unelected bureaucrats from acting contrary to the expressed will of the American people through their state legislatures.”

For Immediate Release: February 26, 2015

Contact: Christina DiPasquale, 202.716.1953, Christina@fitzgibbonmedia.com

BREAKING: Cable Companies Lose Big at FCC, Barriers to Community Broadband Struck Down

Two southern cities today persuaded the Federal Communications Commission to recognize their right to build their own publicly owned Internet networks where existing providers had refused to invest in modern connections. The 3-2 FCC vote removes barriers for municipal networks in Chattanooga, Tennessee and Wilson, North Carolina, to extend their high-quality Internet service to nearby areas.  

Said Christopher Mitchell, Director of Community Broadband Networks at the Institute for Local Self-Reliance:

“Cable companies lost their bet that millions spent on lobbying to stifle competition was a wiser investment than extending high-quality Internet to our nation’s entrepreneurs, students and rural families. 

“Preventing big Internet Service Providers from unfairly discriminating against content online is a victory, but allowing communities to be the owners and stewards of their own broadband networks is a watershed moment that will serve as a check against the worst abuses of the cable monopoly for decades to come.”

The FCC decision sets an historic precedent for towns working to offer municipal broadband networks in twenty states that have enacted limits or bans on local governments building, owning, or even partnering to give local businesses and residents a choice in high speed Internet access. Three-quarters of Americans currently have either no broadband or no choice of their Internet provider. 

President Obama suggested restoring local telecommunications authority while visiting Cedar Falls in January and a number of local elected officials were ready to back him up. Leaders from 38 members of Next Century Cities recently submitted a public letter to the FCC urging commissioners to consider local autonomy as they consider the Chattanooga and Wilson, North Carolina, petitions.

Last summer, both communities filed with the FCC seeking relief from restrictive state laws that prevent their broadband utilities from serving surrounding communities. FCC Chairman Wheeler has spoken in support of local authority more than once. Next Century Cities, a coalition of communities that was formed specifically to advance better connectivity, writes:

We write only to urge that, as you consider these petitions, you take proper account of the importance of local choice and autonomy. The benefits of high-quality broadband are now beyond dispute: these projects have stimulated local innovation and economic development, enhanced education, improved government services, and opened new worlds of opportunity to communities and citizens. It is our hope that federal policy will support the realization of these outcomes in our communities and in towns and cities across the country, by empowering every community to meet the needs of their residents.

You can read the full letter [PDF] online to see if your elected officials signed on.

The FCC's decision on the petitions is expected in February.