The fight over cities’ rights to own, operate and expand community broadband networks now has a new battleground – the FCC. Wilson, N.C.; and Chattanooga, Tenn.; filed a petition with the Commission on July 24 to remove state laws that prevent them from offering broadband services outside of their established territories.

Communities have been at war with big cable and telecommunications companies for years over the legality of municipal broadband networks. The battles often take place in state legislatures, where a number of states have enacted legislation to prevent cities from expanding existing networks or building new ones.

But those restrictions could now be overturned by the FCC. Chairman Tom Wheeler blogged on June 10 that he believes it is in the best interests of consumers and competition for the FCC to use its power to pre-empt those state laws that ban or restrict community broadband networks.

"If the people, acting through their elected local governments, want to pursue competitive community broadband, they shouldn’t be stopped by state laws promoted by cable and telephone companies that don’t want that competition," Wheeler wrote.

With the petition to remove state barriers to municipal networks in Tennessee and North Carolina now filed, the stage is set for a showdown between the Commission, local governments, state governments and telecommunications providers.

Christopher Mitchell, director of the Telecommunications as Commons Initiative of the Institute for Local Self-Reliance and a national expert on community broadband, explained that under North Carolina and Tennessee law, AT&T, Time-Warner Cable and Comcast can offer their services anywhere in those states. But community broadband networks are unable to do the same thing.

“The chairman has been very clear in his desire to remove these sorts of barriers,” Mitchell said. “And I think when you look at Chattanooga and Wilson, they are examples of the absolute most heinous barriers … and they’re prohibited from expanding to neighbors who desperately want those services.”

EPB, the nonprofit agency that provides broadband services to Chattanooga residents, issued a statement on July 24 asserting that territorial restrictions in Tennessee need to be removed if the state wants to carry out Congress’ objective to improve availability of high-speed connectivity.

“True broadband infrastructure provides access to information, jobs and education, and gives citizens and businesses the opportunity to fully participate in – and to lead – our emerging knowledge economy," said Harold DePriest, EPB’s president and CEO. "Communities should have the right, at the local level, to determine their broadband futures."

Authority Questions

Some question whether the FCC has the authority Wheeler believes it does, however. The U.S. House of Representatives last month approved an amendment by Rep. Marsha Blackburn, R-Tenn., that will prevent the FCC from allowing cities to sell their own broadband access directly to citizens, according to The Washington Post.

Blackburn hasn’t been shy in her opposition to FCC involvement on matters regarding Internet access. She is a member of the House Energy and Commerce Committee, and sponsors H.R. 3924, a bill that prevents the FCC from regulating the Internet without explicit Congressional authorization. 

The National Conference of State Legislatures (NCSL) is also not convinced Wheeler and the FCC have the power to pre-empt state laws regarding municipal broadband. In a July 22 letter obtained by the National Journal, the NCSL told the FCC it would constitutionally challenge any attempt to eliminate or diminish state laws.

Mitchell believes, however, that Circuit Judge Laurence Silberman’s dissent in the U.S. Court of Appeals decision that shot down the FCC’s net neutrality rule in January, provides the FCC with the authority it needs. Silberman’s interpretation of Section 706 of the Telecommunications Act of 1996, which outlines advanced telecommunications incentives and FCC authority, indicates that the court may support the FCC’s power to regulate in the public interest – in this case, removing state barriers to local government-owned networks.

“We’ve long had a federal system where we devolve a lot of authority down to local levels, and I think it’s the appropriate system we should have,” Mitchell said. “What the FCC should do here is ensure that the communities that want to have these networks and expand them have the ability to do so."

Brian Heaton  |  Senior Writer

Brian Heaton is a senior writer for Government Technology. He primarily covers technology legislation and IT policy issues. Brian started his journalism career in 1998, covering sports and fitness for two trade publications based in Long Island, N.Y. He's also a member of the Professional Bowlers Association, and competes in regional tournaments throughout Northern California and Nevada.