Tactics to Fight Public Broadband Barriers (Contributed)

Once you know the law, taking action is the second step.

by Craig Settles / January 27, 2015

Now that President Obama has made it a priority to roll back the 21 states' barriers to public-owned broadband, what’s the role of local government officials and staff in this effort? They should feel an even greater sense that now is the time to act since Sens. Cory Booker, D-N.J., Ed Markey, D-Mass, and Claire McCaskill, D-Mo., introduced the Community Broadband Act in the U.S. Senate to remove those barriers.  

First and foremost, you and a good attorney need to understand the law in your state. It is surprising how many communities think there is a total ban on public networks in their state when this is clearly not the case. Every law’s restrictions are different and represent varying degrees of severity. 

Consider three things: 1) the law’s compliance requirements (e.g., cities must seek permission from incumbent telecom providers, cross-subsidization of the network is forbidden); 2) the stated reason for initiating the law; and 3) the real reason the law was written.  

Knowing what you must do to comply helps determine if you can or want to own the network, create a nonprofit to run it, partner with the private sector or take another course. Understanding the rhetoric that justified writing the law helps you predict how current state legislators may respond to those who directly challenge their bills. For example, bills written by legislators of the free-market belief that death is preferable to a government-run venture of any kind likely won’t be changed. 
Despite the rhetoric, the real reason most of these laws exist is to protect giant telecom and cable companies from competition. Knowing how much lobbyists influence your legislators and how much incumbents will spend to try to crush competition influence tactics for navigating, mitigating, or eliminating barriers these laws create.

Taking Up the Fight

Carriers of Last Resort (COLR) may give you a leg up
In many, if not all states, COLR laws were passed years ago to ensure rural communities got telephone services. Deals struck by legislators with large telecom and cable companies in effect said, “We’ll give you favorable treatment, if not near-monopoly advantages in some areas, if you agree to provide service to customers even in sparsely populated areas, come hell or high water.”  

Over the past three years, carriers have lobbied state legislatures to pass bills to free them of these obligations, including in New Jersey, Michigan (passed in 2014), California and Kentucky (killed in 2014). Find out as soon as possible if carriers in your state have been released from COLR. Smaller communities in states with anti-muni net laws will be doubly shafted because they won't have a COLR law and they may not be able to replace the COLR with public networks. Use this to your advantage to try to negotiate relief from your anti-muni network law. 

Frontal assault on the law
This is the trickiest option to execute with success. Once you try to change or kill a law, a lobbyist can slip in and influence language that makes your current law much worse. Or other proposed and existing bills can be taken hostage and threatened. Some lawmakers have been forced to frantically kill their own bills because of a threatened poison pill. In order to make a frontal attack work, you must have good strategy, strong influence with legislators and sizeable numbers of citizens ready to digitally and literally storm the statehouse walls – multiple times. But you have to answer the question: Is possibly ending up with a more restrictive law worse than the pain of having the current law on the books?  

Missouri currently is an example of the danger of opening up existing laws for adjustments. In this case, anti-muni network State Sen. Kurt Schaefer, R-Columbia, is advancing a bill to add to the state’s already-restrictive law. This bill is so vaguely worded that it could cripple cities’ ability to not only pursue broadband networks, but also other vital services such as police, water and sewer. And a seemingly benign requirement in the bill could be adjusted before the Senate votes on it, and thus make it very difficult to get public broadband even if a majority of a city's citizens approve it. Broadband advocates must keep a lot of eyes and pressure on legislators to kill such efforts in the run-up to the Senate vote.

Horse trading can work
New Mexico may be the only state in the union to have an anti-competition law rescinded. The state's statute forbade co-ops from providing broadband services. Kit Carson Electric Cooperative's CEO Luis Reyes Jr., began a systematic campaign of building local political support that was rolled up into state political support. “We started with extensive education and face time with elected officials at local levels, anyone who ran for elected office who would benefit by having better broadband,”  he said.

The co-op initiated economic development projects in the three counties it serves, and developed credibility for bringing jobs to the communities. Staff then educated communities on how broadband would bring even more jobs to town. Support built among constituents and elected officials generated 1,000 letters of support for the co-op’s broadband plans, which they leveraged with state legislators to get the restrictive law removed. Kit Carson created allies by partnering with lawmakers to help legislators implement their economic development initiatives. “Cities always go to the legislature asking for something,” said Reyes. “But we developed relationships because legislators could count on us to deliver support from our 29,000 customers.” Try to make a similar tactic work for you short-term and long-term.

Local business support is the crux of mitigating legislative barriers
Whether you take steps to comply with requirements of your state’s law, or you plan to try to repeal the law in the legislature, you need a strong, vocal representative block of constituents supporting you online and at the statehouse. For one thing, your network’s ability to impact economic development rides heavily on business subscribers, and improving their rural constituents’ economic fate could get some legislators to bend on some of the laws. Financial sustainability of the network rests heavily on companies of all sizes, and some compliance requirements are linked to public networks’ revenue. 

Legislators may take a lot of giant cable companies’ money, but they reply heavily on your businesses to fund their campaigns. Leverage this dependency to influence broadband laws. Towns such as Emporia, Kan., and San Leandro, Calif., are relying on local businesses as investors in their networks, which is important because several state barriers are designed to make raising money to build networks difficult. Overcoming other barriers requires strong partnerships between business, political and other constituencies. However you approach these barriers, you need businesses beside you. 

Your constituent foot soldiers
The additional recommendations in my report, How to Navigate, Mitigate or Eliminate the Impacts of State Restrictions on Public Broadband, reflect a need for strong planning to address state barriers. And at some point, you’ll need lots of feet on the street to execute those plans, whether it’s to pass state-mandated referenda, to participate in needs assessments to comply with other requirements, or to push legislators to repeal some of these laws. Start making plans now to convert residents’ need for broadband and their deep dislike of current providers into political action, a bipartisan political campaign with all the trimmings. 

Gigabit Nation talk show host Craig Settles, author of
How to Navigate, Mitigate or Eliminate the Impacts of State Restrictions on Public Broadband, helps communities develop broadband strategies.

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