How to Overcome Public Broadband Restrictions

Local governments hesitating to build or expand their own broadband networks because of red tape and restrictive state laws may not be as handcuffed as they think.

How to Navigate, Mitigate or Eliminate the Impacts of State Restrictions on Public Broadband analyzes legislative barriers in 21 states and provides recommendations on how to handle legal challenges to creating new municipal networks. Authored by broadband analyst Craig Settles, the report enables communities to understand the technicalities of state laws and find the right angle to push forward on expanded connectivity.

In an interview with Government Technology, Settles suggested that several state “de-facto” bans on community broadband projects aren’t ironclad. Armed with the right knowledge and thorough legal analysis, he believes many cities and counties may have the authority to develop their own networks.

“There are states like Pennsylvania and Michigan where literally there is no activity because people assume there is a ban,” Settles said. “They have imposed a total restriction on themselves because that’s what they think exists on the books. So knowing what the laws are is liberating in a sense, because then you start to figure out that isn’t the case.”

Some of Settles’ recommendations in the report include:

• Know the law – find out if state restrictions on municipal broadband are comprehensive. Chances are, some aren’t total prohibitions.
• Be prepared to fight – representation at state legislatures is key to defending your position on muni-broadband.
• Choose your battles wisely – if your state has restrictions that are fairly easy to overcome, make the effort to do so, instead of trying to rewrite or remove laws.

With regard to Pennsylvania, Settles summarized the state’s restriction as a “right of first refusal.” He explained that under Pennsylvania statute, if a local government wants to create a broadband network and supply service to residents, it must come up with a plan and present it to the incumbent provider.

If the provider agrees to build the network in the way the municipality wants it, no public network could be created. However, if the incumbent doesn’t agree, or agrees and then fails to build the network within the specified amount of time, the local government is then free to build and operate its own network.

Settles noted that when the law went into effect, “every article” painted it as a total restriction, but that isn’t the case. He believes that’s one of the primary reasons why more Pennsylvania municipalities haven’t moved forward with their own broadband networks.

“The downside was that only one community in Pennsylvania stepped up and made their presentation,” Settles recalled. “The provider declined and the county went ahead and built the network. They don’t get any incumbent flak, because they told them on the front end they wanted to do this, and the incumbent didn’t do it.”

Kutztown, Pa., delivers broadband connectivity to residents through Home Net, a division of Hometown Utilicom, the city’s utilities provider.

The report took approximately four months to research and write, according to Settles. The recommendations stemmed from dozens of interviews with local government representatives, telecom attorneys and other experts.