The Sixth Circuit Court of Appeals issued their order on August 10th supporting the states of Tennessee and North Carolina in their challenge from an FCC decision from February 2015. Both states objected to the FCC’s decision to preempt state laws preventing municipalities from providing fast, affordable, reliable connectivity via municipal Internet networks. The Appellate Court Judges reviewed the legal arguments, the precedent, and the interplay between federal authority and state sovereignty. 

The impact of their ruling will affect more than a few pages in a law school text book. Access to high-quality Internet access positively impacts real people and businesses and, as Cecila Kang captures in her recent article in the New York Times, the people who depend on it fear the outcome if their state legislators take it away.

Family Farm Fear

Kang profiles Vick Family Farms, a family potato farm in Wilson, North Carolina.  The Vick family chose to invest in a processing plant when they learned that Wilson’s Greenlight would provide the necessary connectivity. Greenlight allowed them to increase sales overseas. Now, they may lose that connection:

“We’re very worried because there is no way we could run this equipment on the internet service we used to have, and we can’t imagine the loss we’ll have to the business,” said Charlotte Vick, head of sales for the farm.

As Kang notes in her article, the FCC has no plans to appeal the decision, so battles will resume at the state level. Advocates will need to be twice as vigilant because incumbents - the only ones that come out ahead from this decision - may try to push state legislators for even tougher anti-competitive state barriers.

Pinetops: Poster Child For Good Connectivity

Minneapolis, MN - The 6th Circuit Court of Appeals decided today to dismiss the FCC's February 2015 decision to encourage Internet investment in Tennessee and North Carolina. Tennessee and North Carolina had both restricted local authority to build competitive networks.

"We're disappointed that the FCC's efforts to ensure local Internet choice have been struck down," says Christopher Mitchell with the Institute for Local Self-Reliance. "We thank the FCC for working so hard to fight for local authority and we hope that states themselves will recognize the folly of defending big cable and telephone monopolies and remove these barriers to local investment. Communities desperately need these connections and must be able to decide for themselves how to ensure residents and businesses have high quality Internet access."

ILSR and Next Century Cities filed an Amicus brief in support of the FCC's position. View the Court's Opinion here.

Contact:

Rebecca Toews

rtoews@ILSR.org

612-808-0689

On the border of Kentucky and Indiana a fight is brewing as AT&T and Google Fiber have both announced plans to bring Gigabit Internet service to Louisville, Kentucky. Home to over half a million, the city could see major economic development with new ultra high-speed Internet access, but there’s a problem: the utility poles.

AT&T is suing the city over a “one touch make-ready” ordinance. On February 11, 2016, the Louisville Metro Council passed the ordinance in order to facilitate new competitors, i.e. Google Fiber. 

Utility Poles: Key to Aerial Deployment

Make-ready is the shorthand for making a utility pole ready for new attachments. Although it may seem simple, this process is often expensive and time-consuming. To add a new cable, others may have to be shifted in order to meet safety and industry standards. Under the common procedure, this process can take months as each party has to send out an independent crew to move each section of cabling. 

To those of us unfamiliar with the standards of pole attachment it may seem absurd, but this originally made sense. Utility poles have a limited amount of space, and strict codes regulate the placement of each type of cable on the pole. Competitors feel they have to fiercely guard their space on the pole and cannot trust other providers to respect their cables. Make-ready must involve coordination between multiple providers and the utility pole owners. For some firms, like AT&T, this is an opportunity to delay new competition for months.

Attorneys argued before the Sixth Circuit Court of Appeals on March 17th in the case of Tennessee and North Carolina vs the FCC. The attorneys presented their arguments before the court as it considered the FCC's decision to peel back state barriers that prevent local authority to expand munis.

A little over a year ago, the FCC struck down state barriers in Tennessee and North Carolina limiting expansion of publicly own networks. Soon after, both states filed appeals and the cases were combined.

You can listen to the entire oral argument below - a little less than 43 minutes - which includes presentations from both sides and vigorous questions from the Judges.

To review other resources from the case, be sure to check out the other resources, available here, including party and amicus briefs.

Cleveland Utilities (CU), serving Bradley County, is carefully searching for the best way to improve connectivity for its southeast Tennessee customers. After exploring a number of possibilities, CU sees a partnership with Chattanooga's EPB as the brightest opportunity but their collaboration rests on lawmakers in Nashville or the U.S. Court of Appeals.

The Need Is There, The Neighbors Are Close

CU President, Ken Webb knows the community needs and wants something better than AT&T for Internet access or cable TV from Charter Spectrum, especially in rural areas. Residents and business owners have gathered at community meetings. Local community leaders have passed resolutions asking the state to roll back restrictions and contacted CU directly but the utility's hands are tied as long as state barriers remain in place.

For over 7 decades, CU has served residents and businesses, providing electricity, water, and sewer. After a 2015 feasibility study revealed a $45 million estimate to build out a triple-play fiber to the entire county, CU began considering a limited pilot project.

They have been talking with their neighbors, EPB, about the possibility of partnering for some time Webb told the Times Free Press:

"We don't want to reinvent the wheel," Webb said Tuesday. "We continue to study our options (for adding telecommunications services), but we would prefer for the state to allow us to have the option of working with EPB."

Waiting...Waiting...Waiting

Right now, the prospect of fiber in Bradley County appears to hinge on two possible outcomes. First, if last year's FCC decision to roll back state barriers is affirmed by the U.S. Court of Appeals for the Ninth Circuit and legal review stops there, the EPB will not need to worry about a legal challenge. 

The State of North Carolina is currently awaiting a decision from the U.S. Sixth Circuit Court of Appeals as the court considers the FCC's February decision to roll back state barriers. North Carolina Attorney General Roy Cooper's office is heading up the state's appeal, but is his heart in it?

The Legislature has passed a lot of bad laws, but it is the job of the attorney general to defend state laws...And I wish the governor and the General Assembly would stop passing so many bad laws that create litigation. We’ve seen that in many instances. This is another situation where the attorney general’s office is duty bound to defend state law.

Reports have recently surfaced from The Detroit News and Patch.com that a town in Michigan is now fighting Comcast over who owns their network.

The Backstory

Fifteen years ago, West Bloomfield, Michigan, population about 65,000, wanted an Institutional Network (I-Net) to connect all the important services, like emergency response, police, fire, and water, with a dedicated high-speed network. The town entered into a franchise agreement in order to share the construction costs with the incumbent cable company, which at the time was MediaOne. According to the township, MediaOne offered to contribute $400,000 to the cost of construction as part of that agreement.

The agreement was transferred to Comcast in 2000; Comcast acquired MediaOne in 2002. MediaOne and successor Comcast have provided "free high-speed bandwidth transport as well as interconnectivity" during the life of the network claims Comcast in a letter submitted to the court. The cable giant also describes the practice as a "benefit not provided by Comcast's competitors" and wants it to stop. The franchise agreement expired on October 1 but was renewed until 2025.

To The Courts

Comcast and the town are now fighting over ownership of the infrastructure. With Comcast demanding new fees, the town is bringing a lawsuit. Comcast, however, maintains that it owns the I-Net that the town uses for all its important communications. The Detroit News reports that the township is coming out swinging:

Nine months ago, the FCC voted to peel back laws in Tennessee and North Carolina that eliminate local authority and discourage expansion of broadband investment. As was expected, both states filed appeals and those appeals were consolidated for review by the U.S. Court of Appeals for the Sixth Circuit covering Michigan, Ohio, Kentucky, and Tennessee.

It has been a long and arduous journey for the parties, their attorneys, and local authority advocates. In order to help MuniNetworks.org readers stay informed of the parties and their arguments, we gathered together a collection of resources related to the original Order and the Appeal. 

• Memorandum Opinion and Order of the FCC adopted February 26, 2015 [PDF]: http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0312/FCC-15-25A1.pdf
• FCC Opinion and Order Striking Down Local Authority Limits in TN and NC: Highlights
• Podcast with Jim Baller on the decision, Episode 143 of the Community Broadband Bits Podcast

Downloads of briefs are available as attachments here.

When we last checked in on Bozeman, the City Commission had approved a Technology Master Plan. In order to implement that plan, the same body voted unanimously on May 4th to create the nonprofit Bozeman Fiber to manage the network, reports the Bozeman Daily Chronicle.

The organization's board will consist of 7 members, including 1 from the city. Members from the public and private sectors will also be on the board, which will function independently from the City. The business community is especially excited about the project. From the article:

Several members of the public, many representing business groups like the Montana Photonics Industry Alliance and Bozeman Chamber of Commerce, urged commissioners to move forward with the project. No one voiced opposition.

“This is putting in critical infrastructure,” said Matt Johnson of First Interstate Bank. “It’s one of the best collaborative projects I’ve been a part of.”

Learn more about the project from our interview with several people working on the project in episode #142 of the Community Broadband Bits podcast.