preemption

Content tagged with "preemption"

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From Broadband Barriers to Section 230 - Episode 450 of the Community Broadband Bits Podcast

This week on the podcast we're joined by Berin Szoka, President of TechFreedom, to talk about the pressing broadband issues of today and tomorrow. Christopher and Berin share what they see as the biggest barriers to universal, high-quality Internet access today, including the jurisdictional issues facing communities large and small, as well as the regulatory solutions which would facilitate more rapid and efficient infrastructure deployment.

They debate whether we should spend public dollars not just on rural broadband where there are no options, but in town centers with slowly degrading copper networks where monopoly providers have signaled little intent to ever upgrade that infrastructure.

Christopher and Berin then dive into an issue Berin has been working on for the past few years: the Section 230 debate, and what it means for the future of the Internet if content platforms become liable for the third-party content they host.

This show is 51 minutes long and can be played on this page or via Apple Podcasts or the tool of your choice using this 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 Arne Huseby for the music. The song is Warm Duck Shuffle and is licensed under a Creative Commons Attribution (3.0) license.

Republican Broadband Agenda Would Preempt Local Authority and Ban Municipal Networks

Last week, House Republicans introduced a bill package ostensibly to promote broadband expansion and competition across the country. In reality, the legislation is a wish list of monopoly cable and telephone companies that will protect them from competition and decrease their accountability to the public. It would also ban communities from building their own networks or engaging in public-private partnerships.

 

A Rights of Way Free-for-All

About a third of the bills in the Boosting Broadband Connectivity Agenda would preempt regulations (including application timelines and fee schedules) set by government subdivisions on wireless deployment. The major mobile carriers are already in the process of slowly rolling out 5G networks which will require the installation of hundreds of thousands of small-cell sites over the next several years. AT&T spent more than $23 billion on the recently concluded 3.7 GHz C-band auction, with T-Mobile spending $9.3 billion. Verizon outspent every other bidder combined at $45 billion. Establishing shorter shot clocks and maximum fees for the installation of new hardware in public Rights of Way would simultaneously reduce the income municipalities receive and lead to the proliferation of poles and attachments across the country with limited public input. We’ve already seen how it has negatively impacted cities like Milwaukee and Tucson

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Arkansas Takes a Huge Step Forward in Removing Barriers to Municipal Broadband

It’s official. Senate Bill 74 became law last week when Governor Asa Hutchinson signed it, significantly reducing (but not completely removing) barriers to municipal broadband in the state of Arkansas, with both chambers voting unanimously in approval of the legislation. While the legislation doesn’t completely eliminate existing barriers to municipal broadband in the state, we consider it an historic moment and a significant step forward.

The central win in SB 74 is that it allows government entities “to acquire, construct, furnish, or equip facilities for the provision of voice services, data services, broadband services, video services, or wireless telecommunications services” so long as they “partner, contract, or otherwise affiliate with an entity that is experienced in the operation of the facilities,” as well as conduct due diligence, and provide ten-days’ notice and hold a public hearing.

Importantly, it also allows municipalities to issue general obligation bonds or impose special taxes to do so; prior, they could only do so after acquiring third-party funding through grants or loans. Finally, the legislation also expands the emergency provisions clause to include health and public safety operations.

SB 74 was first filed in early January, making its way through the Agriculture, Forestry, and Economic Development Committee before returning to the floor in the third week of the month. There it was amended once more to remove language expressly permitting municipalities from construction, owning, and operating broadband networks, leaving the law a bit unclear where local authority ends. We, along with the Coalition for Local Internet Choice, take this to mean that municipalities without electric utilities that try build communications facilities to do retail service could run into some legal challenges. On the whole however, SB 74 remains a significant win for municipalities to pursue projects. 

Director of Community Broadband Networks Christopher Mitchell had this to say:

Washington Law Could Unleash the Power of Utility Districts to Offer Retail Broadband Services

In our year-end roundup and prediction show on the Community Broadband Bits podcast last month, the more optimistic members of the team predicted that 2021 would see some states remove barriers to municipal broadband. 

It looks like in a few places momentum might be headed in that direction. Last week we wrote about a bill in Arkansas that would remove almost all barriers in the state, allowing political subdivisions and consolidated utility districts to pursue projects on their own and without external grants. 

New legislation in Washington looks similarly promising. On Thursday, January 21st, House Bill 1336 was introduced [pdf], removing specific barriers which currently prevent Public Utility Districts (PUDs) from delivering broadband service on a retail basis. Currently, PUDs are only able to offer unrestricted broadband on a wholesale basis through a dark fiber or open access network. Under certain conditions PUDs can offer retail service, but only if an existing Internet Service Provider (ISP) leasing that PUD infrastructure ceases operations, and even then, they are only allowed to do so as long as no other private ISP steps up to offer retail service. In the interim, PUDs can provide service for a maximum of five months and must, within thirty days, begin the process of finding a replacement.

The new law removes that barrier, and not only allows PUDs to construct and operate retail broadband networks inside their existing territory, but outside as well. In addition, it establishes that PUDs can work with federally recognized tribes to construct infrastructure. 

Bipartisan Approach

The co-sponsors of the bill have staked out different rationales for removing the restrictions, with Drew Hansen calling for broadband to operate as a public utility and Alex Ybarra more concerned with the unconnected pockets of Washingtonians left by the private ISPs. Bill co-sponsor Alex Ybarra told the Washington State Wire:

Arkansas Bill Could Remove Almost All Barriers to Municipal Broadband

On Monday, a new bill introduced into the Arkansas State Legislature has the potential, if passed, to remove almost all existing barriers to municipal broadband in the state. SB 74 was introduced in the 93rd General Assembly, Regular Session 2021 by State Senators Breanne Davis and Ricky Hill and their counterparts Representatives Brian Evans and Deann Vaught. 

The legislation would substantially amend the state’s Telecommunications Regulatory Reform Act of 2013, which in most scenarios bans government entities from building and owning networks and delivering services to residents in pursuit of promoting competition and bringing Internet access to unconnected parts of the state.

SB 74 keeps an existing ban on providing basic local exchange service in place (i.e. telephone), but otherwise allows municipalities to build, buy, and operate network infrastructure to deliver digital voice, broadband, data, and wireless telecommunications service to anyone in the state. 

Slow Progress in Recent Years

Currently in Arkansas, municipalities are allowed to build or partner with private companies to build broadband infrastructure, but only if they acquire a grant or loan to do so and only do so in unserved areas. When policy veterans last commented on these particulars of the legislative landscape in 2019, they were worried that such geographic and financing restrictions would effectively preclude new networks, and they were right. 

SB 74 eliminates these two restrictions, which represents a significant step forward. It also adds consolidated utility districts to the list of eligible entities, removes the requirement to file a public notice, and dramatically expands the emergency services clause to include healthcare services, education, and “other essential services.”

New Publication Tackles the Problem of Preemption

We spend significant time and energy here covering the regressive impacts of state broadband policies which preempt local communities from creating competition and choice as well as connecting the unconnected by building their own networks. Most recently, we wrote about the FCC’s new 5G rules regarding locally owned and regulated utility poles, and the proliferation of small cell sites as mobile providers race to deploy tens of thousands of antennas as part of network infrastructure improvements. Its effects are already being seen in Milwaukee, where fee caps, shorter timing windows, and rights of way exemptions are having negative effects. 

But state preemption is a versatile legislative tool that extends well beyond broadband access, and a new report explores not only its increasingly common use but the negative impacts on communities in many instances across the nation.

This is the topic tackled by The Local Power and Politics Review, a joint project by ChangeLab Solutions and the Local Solutions Support Center. Its first annual report, released in November, brings together more than a dozen experts and advocates across an array of fields to address how “[i]nstead of rising above the fray, many state leaders have embraced negativity, taking aim at progressive localities, local leaders, policies, and programs by weaponizing preemption legislation and other means of control.”

Pennsylvania Laws Aim to Expand Broadband

A pair of broadband bills in Pennsylvania (one of which has been signed into law by the governor, and the other having passed one chamber) represent a collective step forward for broadband by updating regulations and establishing a broadband grant program so as to promote network expansion in rural and unserved parts of the state of Pennsylvania.

Fewer Restrictions, More Money

The first is House Bill 2438 [pdf], which allows electric cooperatives to use existing easements for an affiliate to deliver broadband service without re-negotiating with property owners. The bill also allows cable companies to use cooperative-owned poles with permission and in accordance with existing rates and regulations. It’s designed to make it faster, cheaper, and easier to bring Internet access to rural parts of the state. 

Johnstown Area Regional Industries entrepreneurial coach Blake Fleegle said of the legislation

Every county in our region is looking at bringing high-dollar earners to our region. Employers are finding people can be just as effective working in Johnstown as they would be in Washington, D.C., or Pittsburgh. But they need to connect, and that's where broadband comes into play.

Chad Carrick, President and CEO of REA Energy Cooperative, likewise welcomed the legislation while emphasizing the role electric co-ops will play in the state: 

It may be hard for some to believe, but there is a good 40% of Indiana and Cambria counties that either don't have broadband Internet access or it's not up to snuff, according to our surveys to our membership.

2438 passed the state House in June, the Senate at the end of October, and was signed into law by the governor at the end of last month. 

U.S. Mayors Face Uphill Battle to Preserve Local Control Of 5G Deployment

As Mayors must concern themselves with everything from public safety and health to the development of the local economy and the provision of essential municipal services, they tend to have a particular focus on the infrastructure necessary to support it all, amid a cacophony of competing interests.

Over the summer, having reached consensus on the fundamental importance of “the digital infrastructure of tomorrow,” a particular focus of the United States Conference of Mayors 88th National Annual Meeting was to issue a resolution declaring the necessity of “Preserving Local Public Rights-of-Way and Regulatory Authority to Most Effectively Deploy 5G Broadband Access and Bridge the Digital Divide during the COVID-19 Pandemic.”

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The Mayors’ resolution comes in response to the Federal Communications Commission’s (FCC's) 2018 preemption of local governments’ authority to regulate 5G infrastructure in their cities. 

At the heart of the regulatory debate: local governments’ ability to determine the amount of fees to charge mobile carriers that want to place 5G equipment in Rights-of-Way. In addition to putting limits on those fees, the FCC Order also sets strict timelines by which cities and towns must respond to carrier applications. The FCC decision, issued over the objections of industry observers and policy experts, essentially eliminates local communities’ ability to negotiate in order to protect their own Rights-of-Way and the poles, traffic lights, and other potential structures within those Rights-of-Way.

Preempting Local Authority

New Study Shows State Barriers to Community Networks Decrease Broadband Availability

That community networks act as a positive force in the broadband market is something we’ve covered for the better part of a decade, but a new study out in the journal Telecommunications Policy adds additional weight (along with lots of graphs and tables) which shows that states which enact barriers to entry for municipalities and cooperatives do their residents a serious disservice. 

“State Broadband Policy: Impacts on Availability” by Brian Whitacre (Oklahoma State University) and Robert Gallardo (Purdue University), out in the most recent issue of the journal, demonstrates that enacting effective state policies have a significant and undeniable impact on the pace of basic broadband expansion in both rural and urban areas, as well as speed investment in fiber across the United States. 

Digging into the Data

The research relies on the State Broadband Policy Explorer, released in July of 2019 by Pew Charitable Trusts, and focuses on broadband availability across the country from 2012-2018. Whitacre and Gallardo control for the other common factors which can affect whether an area has broadband or not (like household income, education, and the age of the development), and combine the FCC’s Form 477 census block-level data along with county-level data to explore expansion activities over the seven-year period. By making use of an analytical model called the Generalized Method of Moments, Whitacre and Gallardo are able to track all of these variables over a period of time to show that there is a statistically robust connection between specific state policies and their influence on the expansion of broadband Internet access all over the United States. 

How Cities Can Close Digital Divides During Covid — If State Law Doesn’t Stand in the Way

With the end of the federal Keep Americans Connected pledge and the failure of Congress to pass comprehensive broadband aid, it’s clearer than ever before that local governments are the last line of defense against the digital divide, which has been exacerbated by the ongoing pandemic.

Some communities have already taken steps to connect their residents, during the global health crisis and beyond. For example, the public school systems in San Francisco and Portland, Oregon, decided to cover the cost of broadband subscriptions for low-income students. In Chattanooga, Tennessee, the city’s municipal broadband network is partnering with local schools to provide free Internet access to all students that receive free and reduced-price lunch.

However, in 21 states, legal barriers — often enacted at the behest of corporate telecom lobbyists — prevent local governments from investing in community broadband solutions to close the digital divide.

To help local governments that want to improve connectivity navigate the various opportunities and obstacles, we at the Community Broadband Networks initiative at the Institute for Local Self-Reliance (ILSR) have teamed up with the Local Solutions Support Center (LSSC) to produce a number of helpful resources. We previously shared a step-by-step guide for establishing local broadband authority during the pandemic. Now, local officials and community advocates can access two more resources: a guide for local governments to act in the context of the pandemic, and an interactive state broadband preemption map.