The Missouri Municipal League launched the first salvo by submitting a petition to the FCC asking the commission to declare that the federal Telecom Act of 1996 preempted the Missouri law.
The Telecom Act stipulates that it preempts state and local laws and regulations "that prohibit or have the effect of prohibiting the ability of any entity" to provide telecommunications services.
The FCC denied the petition, even though former Chairman William Kennard and two commissioners acknowledged in written statements submitted with the official FCC decision that the Missouri law clearly didn't jibe with the Telecom Act's spirit of competitiveness. The statements also identified the important role municipally owned utilities could play in telecommunications competition.
The league appealed to the 8th Circuit Court, and the court eventually reversed the FCC decision to deny the petition. The Missouri attorney general, the FCC and Southwestern Bell filed petitions for Supreme Court review of the 8th Circuit's ruling, and the whole ball of wax wound up in the Supreme Court's hands.
This issue has been a bone of contention for years. Both sides of the argument are prepared to fight to the death to defend their point of view. Instead of trying to deduce which side is right, it might be more fun to figure out why it's taken so long to settle this thing.
The most obvious line of thought is that this stuff is complicated. All sorts of legal and constitutional minutiae must be sorted through, and it takes a long time for the legal system to cough up a ruling on one little piece of minutia before moving to the next.
That's fair. Nothing about the U.S. government's system of checks-and-balances is designed to move quickly.
Another angle is that the line between the private sector and the public sector is blurred when offering telecom services. A municipal utility, like a phone company, has substantial infrastructure that's fully capable of delivering telecom services to interested subscribers. Because this line is so thin, decisions on who should and shouldn't deliver services are difficult to reach quickly.
That's also fair. Though infrastructure is infrastructure no matter who builds it, an entity like a municipally owned utility isn't the same as a private-sector business. Telecom companies fear that such a utility would have a competitive advantage because it isn't regulated the same way.
Those who suffer most are small and rural jurisdictions where the private sector doesn't see sufficient profits to justify building infrastructure for broadband services, said the Missouri Municipal League.
Actually the situation is worse than the league says.
When cities like Cerritos, Calif. -- hardly rural and hardly small, with a population of more than 50,000 people -- have trouble persuading broadband providers to set up shop to provide high-speed services to their residents, there's a real problem.
Cerritos, in exasperation, quit dealing with regular telecom providers and struck a deal with a decidedly nontraditional telecom, which used Wi-Fi to bring broadband access to the city's starved technophiles.
Something needs to happen. Somebody must be made responsible for the widespread availability of broadband, no matter where people are. As is almost always the case, the technology isn't the bottleneck -- people are.
