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Bald Head Island Reopens RFP to Find The Right Partner

After searching for a suitable partner, the Village of Bald Head Island in North Carolina has reopened its RFP for a gigabit fiber network. Apparently, the community received four responses but no proposal provided the level of detail they require. 

In order to give respondents another opportunity and to offer new candidates a chance, Bald Head Island leaders chose to release the RFP a second time with additional questions and a responsibility matrix. No response will be considered without answers to these new appendices. All three documents are available on the Village website.

The Village of Bald Head Island is home to approximately 160 year-round residents, but numbers swell to 7,000 during the busy tourist season. Vacation homes and part-time residents bring the potential fiber service area up to 2,500 but incumbents AT&T and Tele-Media don't see the value of bringing fiber to such an environment. The StarNews Online described community leadership's frustration and decision to move forward:

"Broadband is not available on Bald Head Island," said Calvin Peck, the village's manager. "It just isn't, and none of the current providers have plans to invest the money to make it available, so the village council feels it's an important enough issue to spend village resources to make it happen."

While Bald Head Island looks for a partner it also plans to ask voters if they agree to pursue better broadband. Voters will decide on November 3rd if they support a $10 million bond issue. Community leaders will focus on revenue bonds, one of the most common ways to finance municipal network deployment. This mechanism shifts repayment to those who use the network, reducing financial risk to the community at large.

Clearly community leaders understand that the time to act is now:

"We are losing people who would build, buy or rent property on the island because they do not have Internet service," said Gene Douglas, the village's mayor pro tempore. "Many executives of major companies' office is wherever they are as long as they have access to the Internet, and we simply don't have that."

As we have noted in the past, good partners are difficult to find; municipalities must always move forward with caution. We applaud Bald Head Island for being thorough and insisting on the details before choosing a partner. Kudos to them also for taking a bifurcated approach and asking voters for funding approval now so all pieces are in place when they find the right partner.

Traffic Project Gets Fiber in the Ground in Winston-Salem, NC

Winston-Salem struck up a smart deal with the North Carolina Department of Transportation in 2011. Four years later, that agreement allows the city to move forward with its vision for an I-Net.

The Winston-Salem Journal reports that the City Council recently approved $826,522 for networking equipment to light up city owned fiber installed by the NCDOT. The agency has been upgrading area traffic control systems, a project estimated at around $20 million. Winston-Salem took advantage of the opportunity and paid the agency $1.5 million to simultaneously install its own fiber in the state conduit.

“The city was able to have the network built at only the cost of the fiber,” [city information systems department Chief Officer Dennis] Newman said. “They (state traffic contractors) are running fiber optic cable all around the city to where all the traffic lights are at. This will enable us to connect to all facilities all over the city – fire stations, public safety centers, satellite police stations – right now there are about 40 locations that we have targeted to connect to.”

As is typically the case, Winston-Salem currently pays private providers for connections at each facility but when the new I-Net is up and running, they will be able to eliminate that expense. The new voice and high-speed network will outperform current connections, described in the article as "out-of-date." City officials also told the Journal that some municipal offices have no Internet access at all but will be connected to the new I-Net.

A number of other communities have taken advantage of partnerships with state and federal transportation agencies during traffic signal upgrades. Martin County, Florida; Aurora, Illinois; and Arlington, Virginia saved considerably by collaborating during similar projects.

Gig City Wilson Helps Local Companies Thrive

The story of how Wilson's municipal fiber network, Greenlight, won over one of its strongest critics illustrates how community networks support and benefit local businesses. Tina Mooring is the Manager of Computer Central in Wilson and was an opponent of the city building a fiber optic network to provide a choice beyond the incumbent cable and DSL companies, both of which were national carriers.

"We were fearful," says Mooring, when asked about her feelings when the City of Wilson first announced its plan to build out a community-wide fiber to the home network. Reselling DSL connections leased from the incumbent telephone company was Computer Central's bread and butter. "We repaired computers and we resold DSL...and we were supposed to take a ‘leap of faith' that the City did not want to put us out of business." Mooring was outspoken in her belief that Wilson was taking the wrong step.

But after a few years passed by, Mooring's feelings about the municipal broadband network changed. Because of Greenlight, Tina's company found new opportunities in offering new services with the greatly enhanced connectivity. In going to conferences and speaking with her clients, she was repeatedly asked if Computer Central could offer services she did not know existed: large data backup services, cloud services, and disaster recovery. Full document and file image backups meant accessing the kind of bandwidth, particularly upstream, that just was not available in the community from the slower cable and DSL connections. Greenlight gave her business plenty of new opportunities:

"I'd say our revenues have increased from 30 and 100 percent over last year's" because of Greenlight's next-generation connections. Computer Central's clients access the upstream and downstream gigabit symmetrical capacity that Greenlight offers throughout the community and her company supplies the value added services on top of that internet pipe: data backup services, various hosting and managed services, security and disaster recovery. Mooring has switched 23 customers in Wilson County to Greenlight because these private sector businesses wanted the hosting and data disaster recovery services they otherwise could not access.

Tina's voice grew serious when she explained one example of how meaningful these new services are to businesses in Wilson. "We had a big tornado go through...everyone was hit including the car dealership across the street from my office. Cars were upside down and thrown down the street. But because of Greenlight's fiber capacity, I was able to get the dealership" right back on its feet. Time is money, and Greenlight, she says, "is very fast."

Computer Central banner

Mooring noted how her business suffers from North Carolina's state law that limits Greenlight's service area to only Wilson County. (As of the writing of this article, the FCC voted to preempt that state law, but the state of North Carolina has sued the FCC in an effort to reverse the order and prevent North Carolina municipalities from providing gigabit broadband services.)

"It's the law itself that's bad for the private sector ... it is hurting the private sector," she explained. "All my clients" in the six counties surrounding Wilson would benefit if Greenlight could serve them." Mooring adds, "I have CPA clients who tell me about their clients asking them: ‘When can they get Greenlight,' when they hear what my CPA accomplishes with our services." CPAs, medical offices, supply houses with medical offices, clients who need metro-ethernet connections, small businesses and small municipalities all would benefit from gaining access to Greenlight" she emphasized. "Right now they are limited on the services that we can provide them due to bandwidth constraints of the current incumbent providers."

Finally, Tina emphasized that access to world class broadband speed is just part of the picture. According to Ms. Mooring, "It's also an issue about the efficiency, the responsiveness, and the customer service... you know who you are doing businesses with because your families have known each other for decades." She noted the difficulty she experiences just to get a call returned from the large local incumbents serving the community. "There is much more latency...and like I said, lost time is lost money," she added. "I want Greenlight to grow, so Computer Central can grow."

Community networks like Greenlight create entrepreneurial opportunities for local businesses like Computer Central to boost local economies. Firms like Computer Central can help other area businesses be more efficient and competitive – but they need to have an infrastructure provider in town that is providing high capacity, reliable connectivity and excellent customer service.

In NC, Bald Head Island Releases RFP for Gigabit Network

The Village of Bald Head Island, North Carolina, recently released a Request for Proposals (RFP), in its search for an FTTP network. The Village, home to about 160 year-round residents, is accessible only by ferry. Transportation on the island is limited to feet, bikes, and electric golf carts. While they may choose slower transportation methods, the people of the island want speed when it comes to Internet access.

Members of the community began working on the idea in the summer of 2013 as part of an initiative that involved several challenges facing this quiet community. They determined that the economic health of local businesses and quality of life depended on improving access, traditionally provided by AT&T and Tele-Media.

Real estate professionals on the island noted that lack of broadband interfered with the housing market. According to the RFP:

Adequate broadband service is at such a premium that current real estate transactions require conveyance of current Internet service. Otherwise, new installations can take a very long time. Inadequate broadband is a known and aggravating hindrance to daily operations of local businesses. There is very strong demand from prospective real estate buyers for high-speed broadband. Current services are of inadequate quality, and worsen in bad weather and during peak usage.

After reaching out to incumbents and potential new providers, Bald Head Island's Village Council chose to open up the possibilities and issue an RFP.

While the number of year round residents is small, part-time housing, vacation rentals, and local businesses catering to tourists are plentiful. As a result, a fiber network could reach approximately 2,500 premises. The population of the island varies based on holidays, with the number of people as high as 7,000. Community leaders expect it to increase significantly when fiber comes to the island.

We reached out to Calvin Peck, Village Manager:

"We are looking for a partner. We think fiber to the home is the way to do it. At this point there is no broadband on the island that fits the FCC's definition."

The community's main industries are real estate and tourism. While we often think of "getting away from it all" as a vacation gold standard, a number of visitors have told Peck they will vacation elsewhere until the island can get its connectivity up to speed. In addition to professionals who need to remain in touch electronically, children and grandchildren still want to stream Netflix or play games online while on vacation.

We saw similar problems in Cook County, Minnesota, where the community is engaged in a BTOP funded fiber deployment. The tourist industry in the woods also needed access to high-speed Internet to remain viable.

Even though the FCC recently struck down North Carolina laws that prevent municipalities from investing in broadband networks (or engaging in certain types of partnerships), leaders in Bald Head Island choose to move forward carefully. They know that the state challenge to the FCC's Order could restore the state restrictions based on judicial interpretation. The original bill was pushed through by then Speaker of the House Thom Tillis (now in the U.S. Senate), who is hostile to municipal networks.

Peck and village officials in Bald Head Island expect Tillis to strongly defend his bill at the federal level. They also don't know if the state general assembly will simply pass another law that could create another barrier. As a result, says Peck, they are approaching the project from a "worst case scenario" perspective. 

They hope that by the time they are operating, there will be no question, allowing them to move forward without the onerous state law requirements that stifle broadband development.

It is unfortunate that industry dollars so control North Carolina leadership that a place like Bald Head Island, with less than 200 full time residents, must develop a contingency plan to protect itself from its own state government. If the Village of Bald Head Island is willing to take on the task themselves for its own future and its right to do so has been recognized at the federal level, state decision makers should step aside and let the community proceed.

Responses to the RFP are due by June 20, 2015. View a PDF of the entire document at the Village website.

North Carolina Files Petition Opposing FCC Ruling to End Anti-Muni Laws

It took a while, but the State of North Carolina finally decided to take its turn at the throat of the FCC. Attorneys filed a Petition for Review in the 4th Circuit Court of Appeals similar to the one filed by the State of Tennessee in March. The Petition is available for download below.

Our official comment:

"Attorney General Cooper must not realize the irony of using state taxpayer dollars to ensure less money is invested in rural broadband, but we certainly do," says Christopher Mitchell with the Institute for Local Self-Reliance. "State leaders should stand up for their citizens' interests and demand good broadband for them, rather than fighting alongside paid lobbyists to take away those opportunities."

Like Tennessee, North Carolina makes an attempt to stop the FCC's well-considered Opinion and Order by arguing that the FCC overstepped its authority in violation of the Consitution. The FCC addressed this argument in its Opinion and Order along with a myriad of other potential arguments. For detailed coverage of the FCC's well-considered decision, we provided information on highlights of the decision back in March.

According to WRAL, Wilson is taking the new development in stride:

The City of Wilson was not surprised that North Carolina sued.

"We are aware of the suit," said Will Aycock, who manages the Greenlight network. "We knew that this would be an ongoing process."

The Attorney general's has not contacted Wilson about the suit, he added.

We have to wonder if North Carolina is a bit embarrassed in arguing that rural areas should not be allowed to build their own networks even as the metro regions in Charlotte and the Triangle are seeing gigabit investment. State elected officials in North Carolina seem committed to two-tier Internet access: fast for the metro and stiflingly slow in rural regions.

"Wilson filed this petition [last year to restore local authority] not with immediate plans to expand into its rural neighboring communities, but to facilitate the future advancement of its critical Gigabit fiber-optic infrastructure over the long term."...Wilson does not expect to incur any legal costs related to the North Carolina suit, Aycock said. "We told our story," he explained.

Unfortunately, this is another example of big telecom dollars asserting influence over  state leaders. Wilson's Greenlight has proven itself over and over again to be an economic development tool, a way for the municipality to save precious public dollars, and an agent to encourage better connectivity for citizens

What Does It Mean to Be A Gigabit City? Sharing Positive Outcomes Together (SPOT)

In North Carolina, Wilson’s Greenlight gigabit fiber network is doing everything it can to ensure everyone benefits from this important municipal investment. The city-owned network is a key partner in a digital inclusion program, Sharing Positive Outcomes Together (SPOT), which focuses on the children least likely to have high quality Internet access in their homes.

Though the digital divide remains a serious policy challenge, Wilson Greenlight and SPOT demonstrate s that solutions can be inspiring and fun. 

Training With a 4-Dimensional Approach

SPOT is an after-hours educational program focused on children ages 5 to 18 and attracts youth from all backgrounds, including those who are homeless or fostered to those with professional parents burdened by demanding work schedules. Among other components, its mission is to promote an atmosphere of accountability, confidence, and self-esteem. SPOT invites its children to dream, be “ambitious, inspired, high school graduates,” while “addressing and closing society's darker cracks that way too many young lives fall into.” “Leave it at the door and come grow” is part of its motto.

To reach such lofty goals, SPOT uses a four-dimensional approach called “project-based learning.” This New Tech School method requires that all elements of STEAM (science, technology, engineering, math and the arts) are part of the program and must utilize technology. According to SPOT’s Executive Director, Matt Edwards, “Learning is activity-based. Kids learn by seeing, touching, doing, and  incorporating technology into their program … and everything is interactive and Internet oriented with kids.”  Embodying this approach, SPOT recently won a $53,000 grant from the state of North Carolina to realize its 21st Century Learning Initiative. The initiative  will hinge on access to high capacity bandwidth and wireless access throughout its 30,000 square foot former Tabernacle church building. 

SPOT Kids at computers

The  Kids Are Teaching Us

“Let’s be honest,” explained Edwards, 
“When it comes to technology, the kids are teaching us.” Adults can now be a hurdle  to closing the technology side of the digital divide. “We put our kids in a box and think they can’t learn this because they are kindergarteners. I can tell you now. My kindergarteners and first graders probably know more about computers than my high schoolers.” A first grader or kindergartener will be stumped on a project, and “you’ll have another one go over there and show them how to look something up. You just sit back and watch. I mean, it is awesome.” This means in the computer lab, SPOT only needs an advisor or a volunteer, not a computer teacher. 

Putting the World in their Hands and Guiding Them

SPOT’s Executive Director described how his experience in closing the digital divide is on a whole new level. “The kindergartner today, they are going to be able to look at their computer and say ‘Find me (the game) Roadblocks’  and the computer will find it. You don’t need to teach the kids how to use the computers and the keyboards and the mouse, you just need to get them access and guide them on how to learn and utilize them in different ways...Get them the iPad. Put the protections on it and let them go. Our role is to guide.” With high capacity broadband, the world is in their hands. “We make sure they go to the best part of the world.” 

Overall, for SPOT, closing the digital divide is about teaching critical thinking, team work, and providing the bandwidth to keep up with the speed of their young minds. Wilson’s Greenlight community owned fiber network is part of that process by providing SPOT no-cost, 75 Mbps upstream and downstream broadband speeds. 

“Five years ago my grants would talk about the technology component needed to combat the technology divide. I don’t use that terminology anymore. It has changed to how do you use technology properly for advancement of our students and kids to enhance critical thinking … and teamwork. When you go out into the work place, very seldom are you an individual worker. You are going to have to get along with different people, work in groups, and solve difficult problems.”

SPOT’s activity-based, STEAM dimension locks into that teamwork. So the program’s focus is not as much on obtaining one to one computers, but having the children work in teams on whatever the project is. 

Greenlight Logo

And Then, of course, There’s Video

Closing the digital divide also means incorporating video, because “theirs is a world of daily Youtubes.” SPOT gives its children access to Kindle HDs where they can push a button, step back and do a video recording. “We teach them how to do it and work with the teenagers to control the uploading...They love watching themselves run in sports...dancing to music...discussing topics, like elections.”  

According to Jeff Fox, volunteer and IT Director, SPOT’s new 21st century classroom will allow students to beam images from their smart phones and tablets spontaneously to flat screens circling the room. The old divide between teachers and students dissolves. With the devices and the speed, everyone becomes a teacher. “It’s such an opportunity,” said Fox. “I’m hooked.” 

But video, especially uploading, requires much more bandwidth and, according to Edwards, “a third-grader’s mind goes very fast.”

“Greenlight’s symmetrical speeds keep up... most of the time,”  he laughs.  “I mean, [on the old system] there was a time when you could walk away, have lunch, and it would still be loading when you returned. Because Greenlight’s signal is strong, it makes the program stronger in all its facets.” 

This all makes sense to the General Manager of Greenlight, Will Aycock, who notes that enhancing the quality of life in Wilson is part of their mission. “Here is yet another example, where our community-owned network, is SPOT on. We give back to the community to benefit future generations, because we are the community.”

Explaining the FCC Muni Order Removing State Barriers - Community Broadband Bits Episode 143

After anticipating this moment for many months, we have a ruling from the FCC that has restored local authority to build and expand networks in North Carolina and Tennessee. Though we have already pulled out the key passages for readers, we wanted to discuss the decision with Jim Baller of Baller, Herbst, Stokes, & Lide.

Jim worked with Wilson and Chattanooga in crafting their petitions and sat down with me last week at the Iowa Association of Municipal Utilities Broadband Conference in Des Moines last week.

We went over the key issues in the ruling, including why the FCC had authority to take action, how the state laws limited investment in advanced Internet networks, the impact of the ruling, and what comes next.

See our other podcasts with Jim as well as articles that we tagged him in here. Read the FCC's Memorandum and Order here [pdf].

Read the transcript from our conversation here.

We want your feedback and suggestions for the show - please e-mail us or leave a comment below.

This show is 30 minutes long and can be played below on this page or via iTunes or via the tool of your choice using this feed.

Listen to previous episodes here. You can can download this Mp3 file directly from here.

Thanks to Persson for the music, licensed using Creative Commons. The song is "Blues walk."

Center for Public Integrity and Reveal Radio Get Into the Trenches of Local Choice

The Center for Public Integrity has followed the local choice debate closely. Their team has travelled to Tennessee and North Carolina to talk to lawmakers, visited communities seeking high-speed networks, and dug deep into the source of influential campaign funds. Allan Holmes and his team have assembled a collection of articles and audio that offers the right amount of history, backstory, and anecdotes to properly understand these issues.

Holmes published an article last August that took a deep look at telecommunications laws at the state level. Along the way, he spoke with State Senator Janice Bowling from Tullahoma. MuniNetworks.org readers know that the community is known for LightTUBe, the fiber network offering an oasis of high quality connectivity in an otherwise broadband desert. At the time, the Wilson and Chattanooga petitions were still fresh but Tennessee communities had long dealt with the problem of poor connectivity from incumbents. From the August article:

“We don’t quarrel with the fact that AT&T has shareholders that it has to answer to,” Bowling said with a drawl while sitting in the spacious wood-paneled den of her log-cabin-style home. “That’s fine, and I believe in capitalism and the free market. But when they won’t come in, then Tennesseans have an obligation to do it themselves.”

Holmes wrote about economic development in Tullahoma, a factor that seems directly tied to the presence of its municipal network:

Employment in Tullahoma lagged statewide job growth before theLightTUBe was turned on. Since the recession ended in 2009, two years after the city began offering broadband, the city has outpaced job growth in Tennessee. The city added 3,598 jobs from April 2009 to April 2014, a 1.63 percent annual growth rate, about double the statewide rate, according to the Bureau of Labor Statistics.

For perspective, Holmes visited Fayetteville, North Carolina, where community leaders have tried and failed to initiate community network deployment. Even though the community has a generous store of fiber assets, state laws prevent municipalities from offering connectivity. Local officials see the nonsense behind the law, pushed through by telecom lobbyists.

For Steven Blanchard, chief executive of Fayetteville’s Public Works Commission, prohibiting Fayetteville residents from using the fiber network that’s already there doesn’t make sense.

“Why shouldn’t we be allowed to sell fiber if it runs by everyone’s house?” Blanchard said. “They are already paying for the fiber to be there, so why not allow them use it for telephone and Internet and capture back a lot of the cost they put in to have it there?”

The article also provides an excellent resource for those curious to know how much North Carolina and Tennessee state lawmakers received from the telecommunications industry. Public Integrity's graphs paint an alarming picture of corporate influence on state policy. Unfortunately, it is easy to look at the graphs, purse one's lips, and think, "so THAT'S the reason why."

In a more recent piece Public Integrity's Jared Bennett interviews Holmes about his experiences reporting on the right for local authority. "Behind the municipal broadband battle" is a collection of brief interviews with people in the trenches. Holmes offers context for each interview.

In the Bennet piece, Holmes shares conversations he had with a number of business owners, residents, and community leaders in Tullahoma and elsewhere:

JB: In the past the president has framed this as a jobs creation issue. And that’s what it sounds like when you talk about companies like Agisent and Matt Johnson’s company, but is that what you found through your reporting?

AH: Yeah, you even talk to big investors, venture capitalists, about the importance of having broadband in a city and you find out that, yeah, Obama is right. We talked to Cameron Newton in Tullahoma. He was an investment banker in New York and for a very large bank in Charlotte, and now he’s a venture capitalist and we sat down in his office in Tullahoma to ask him about the importance of broadband to a city.

“Manufacturing in the U.S. is very, very different than it used to be, and it’s changing rapidly. And now you’re having much more automation. The next move in manufacturing is to additive manufacturing, which is 3D printing. None of that equipment is going to be isolated so in other words it’s all going to be connected. So if you don’t have broadband accessibility, if you don’t have fiber in your community, where are these manufacturing plants going to go? Well, they are going to go to areas that do have it.”

The Center for Public Integrity also produced this Reveal Radio story, "Duking It Out With Telecom Giants." Host Al Letson presents Holmes's journey into money in state politics, threats from incumbents, and the power of the telecom industry.

FCC Opinion and Order Striking Down Local Authority Limits in TN and NC: Highlights

The FCC has found that it has the authority to remove aspects of Tennessee and North Carolina law that limit local authority to build or expand Internet networks. In short, states seem to retain the authority to restrict municipalities from offering service at all. However, if states allow local governments to offer services, then the FCC has the power to determine whether any limitations on how they do it are a barrier to the deployment of advanced telecommunications services per its authority in section 706 of the Telecommunications Act.

The FCC has removed a restriction in Tennessee law that prevented municipalities with fiber networks from expanding to serve their neighbors, per a petition from Chattanooga.

In North Carolina, the FCC has removed multiple aspects of a 2011 law, HB 129, that effectively outlawed municipal networks by presenting local governments with a thicket of red tape, including territorial restrictions on existing networks. The city of Wilson had petitioned the FCC for this intervention. 

Listen to our podcast with Jim Baller about this decision.

See the Institute for Local Self-Reliance Press Release on the Opinion and Order for more. If you don't want to read the full order, we pulled out some key paragraphs and sorted them for your benefit!

 

Key Paragraphs in the FCC Decision

We selected some of the most important passages with references to the original Memorandum Opinion and Order. Look for these passages as you read the original FCC doc [PDF].

Communities Around Chattanooga and Wilson Need Better Connectivity:

43. Numerous commenters favor preemption because they wish to obtain service from EPB or Wilson but are unable to do so, and the maps and data discussed above illustrate that communities surrounding EPB’s and Wilson’s current areas of broadband service have far fewer choices for advanced telecommunications capability than the national average. This suggests that further expansion could generate improved levels of investment and competition in these locations. (pp 23-24)

See charts on pages 15 and 16, 21 and 22 showing areas around Wilson and Chattanooga lag national average on Internet access for both basic and advanced services.

 

Characterizing the North Carolina Barriers to Municipal Networks:

3. In North Carolina, the restriction takes the form of a series of costly hoops through which a service provider must jump.  Although characterized as intended to “level the playing field” with private providers when passed, it is clear that the combination of requirements effectively raises the cost of market entry so high as to effectively block entry and protect the private providers that advocated for such legislation from competition.  (p. 4)

14. We also find that North Carolina’s H.B. 129 falls within our authority to preempt under section 706.  H.B. 129 does not prohibit service by municipal entities — indeed it explicitly permits service. (p. 6)

113. Taken together, these purported “level playing field” provisions single out communications services for asymmetric regulatory burdens that function as barriers to and have the effect of increasing the expense of and causing delay in broadband deployment and infrastructure investment. (p. 51)

62. However, even if we focus on taxpayer protection, as some request, the evidence before us suggests that the Tennessee and North Carolina laws before us actually increase the likelihood of failure because of the barriers that they erect to the successful deployment of broadband infrastructure (p.31)

98. … Indeed, the North Carolina Department of State Treasurer Local Government Commission recognized this in the legislative history of H.B. 129 when it noted that “the boundaries set forth in the PCS weaken the financial viability of [the Greenlight and Fibrant] broadband systems.” (p.45)

103. We therefore find that the exemption for “unserved” areas contained in 160A-340.2(b), is not consistent with our analysis of marketplace realities–both with respect to when H.B.129 was enacted, and especially with respect to our recent findings in the 2015 Broadband Progress Report reflecting evolving technology and consumer expectations. Under H.B.129, an area qualifies as “unserved” if at least 50 percent of the households do not have access to service at download speeds of at least 768 kbps while, in sharp contrast, under the Commission’s current benchmark companies receiving Connect America funding for fixed broadband must serve consumers with speeds of at least 10 Mbps for downloads and 1 Mbps for uploads;and areas are “unserved” by advanced telecommunications capability if they do not have access to service with speeds of at least 25 Mbps / 3 Mbps. As a result of the significantly lower speed thresholds adopted in H.B.129 compared to any of the above standards, very few areas in North Carolina will qualify as “unserved” despite the fact that many areas do not meet the standards articulated above. Given that Congress has directed us to carefully evaluate broadband deployment in our role as the regulator of interstate communications by wire, we find that our speed thresholds are the appropriate metric by which to evaluate whether an area is “unserved,” not the standard contained in H.B.129. (p.47)

 

Characterizing the Tennessee Barrier to Municipal Networks

13. The territorial restriction in Tennessee Code Section 601 serves only to restrict municipal electric providers from providing broadband service on fiber networks that they are already authorized to build statewide…  It serves only to effectuate state communications policy preferences by enforcing inefficiency and protecting incumbents from competition. (p.6)

62. However, even if we focus on taxpayer protection, as some request, the evidence before us suggests that the Tennessee and North Carolina laws before us actually increase the likelihood of failure because of the barriers that they erect to the successful deployment of broadband infrastructure. (p.31)

 

Municipal Networks Improve Internet Access Services and Competition

Footnote 139: We note that EPB vastly increased the broadband speeds available to those within its service territory while generating revenue from its broadband service without cross-subsidization from its electrical service, indicating that there was substantial unmet demand.  (p.25)

47. … In other cases, even in the absence of market failure, communities may find that meeting additional unmet demand for broadband serves important policy priorities.  For instance, the municipal provider may have both the incentive and means to serve those broadband needs that are so widely dispersed in the community they would not show up on the balance sheet of any private firm. (p.25)

 

Relevant to Barriers in Other States

16. While the present Memorandum Opinion and Order (Order) only addresses the EPB and Wilson Petitions, the Commission will not hesitate to preempt similar statutory provisions in factual situations where they function as barriers to broadband investment and competition. (p.6)

60. Some commenters argue that municipal entry distorts the marketplace because the municipality functions as both regulator and competitor and could use its authority anti-competitively. This argument fails because these commenters are unable to identify any compelling evidence that this is an actual problem in Tennessee or North Carolina (or elsewhere). (p.31)

62. However, even if we focus on taxpayer protection, as some request, the evidence before us suggests that the Tennessee and North Carolina laws before us actually increase the likelihood of failure because of the barriers that they erect to the successful deployment of broadband infrastructure (p.31)

79.[Regarding potential barriers to telecom-related services that may not solely be Internet access] -  … that “a provider’s ability to offer video service and to deploy broadband networks are linked intrinsically… We recognize that providers may not always have a business case for building a network unless they can optimize revenue by bundling multiple services. (p.39)

Footnote 329: As discussed above with reference to EPB and Tennessee, the restrictions on the provision of bundled services undermines a provider’s ability to provide broadband successfully due to the strong customer preference for bundled offerings (p.53)

 

Regarding FCC Authority to Preempt State Laws:

146. To put it plainly, section 706 authorizes the Commission to displace state laws that effectuate choices about the substance of communications policy that conflict with federal communications policy designed to ensure “reasonable and timely” deployment of broadband. (p.62)

141. … Before addressing whether section 706 authorizes preemptions of laws regulating municipalities as broadband providers, we first address whether it authorizes preemption under any circumstances; for example, whether it would reach state laws that regulate broadband provision by purely private entities.  Take, as an illustration, a hypothetical state law that prohibited cable-based broadband providers from offering broadband capacity greater than that offered by wireless broadband providers.  We think that the answer in that instance would be clear. Such a law would prevent cable-based broadband providers from competing based on superior bandwidth, which in turn could cause such providers to conclude that they could not make an economic case for increasing the capacity of their network in certain communities. (p.59)

143. … And section 706(b) uses at least equally urgent language, requiring us to continually reappraise deployment, and mandating that we “shall take immediate action” when necessary by “removing barriers to infrastructure investment and by promoting competition in the telecommunications market. (p.60)

11. We find that section 706 authorizes the Commission to preempt state laws that specifically regulate the provision of broadband by the state’s political subdivision, where those laws stand as barriers to broadband investment and competition.  A different question would be presented were we asked to preempt state laws that withhold authority to provide broadband altogether.  But where a state has authorized municipalities to provide broadband, and then chooses to impose regulations on that municipal provider in order to effectuate the state’s preferred communications policy objectives, such as the protection of incumbent ISPs, such laws fall within our authority to preempt.  (p. 5)

147. But where a state has authorized municipalities to provide broadband, and then chooses to impose regulations on that municipal provider in order to effectuate the state’s preferred communications policy objectives, we find that such laws fall within our authority to preempt.  To take an example, where a state allows political subdivisions to provide broadband, but then imposes regulations to “level the playing field” by creating obligations apparently intended to mirror those borne by private providers, it does so in order to further its own policy goals about optimal competitive and investment conditions in the broadband marketplace.  The states here are deciding that incumbent broadband providers require protection from what they regard as unfair competition and regulating to restrict that competition.  This steps into the federal role in regulating interstate communications.  Where those laws conflict with federal communications policy and regulation, they may be preempted.  We thus interpret sections 706(a) and 706(b) to give us authority to preempt state laws that regulate the provision of broadband by political subdivisions, provided that the law in question serves to effect communications policy and would frustrate broadband deployment “on a reasonable and timely basis . . . to all Americans.” (p.62)

148. Such a law is focused solely on policy preferences, and not core state control of political subdivisions.  In short, a state law that effectuates a policy preference regarding the provision of broadband is not shielded from all scrutiny simply because it is cast in terms that affect only municipal providers. (p.63)

12. And unlike Nixon v. Missouri Municipal League, the question here is not whether the municipal systems can provide broadband at all, but rather whether the states may dictate the manner in which interstate commerce is conducted and the nature of competition that should exist for interstate communications. (p.5)

167. Once the state has granted that power, however, we do not believe a state is free to advance its own policy objectives when they run counter to federal policy regarding interstate communications. (p.70)

Within North Carolina, the John Locke Foundation has been a persistent critic of local government efforts to encourage competition against the cable and telephone company incumbent providers. It has made many claims in its effort to ensure communities have no power to build their own networks or to use their assets to partner with independent entities for superior Internet access. The FCC saw fit to directly respond to some of these claims.

 

John Locke Foundation Has Misrepresented How Municipal Networks are Funded

69. Morganton and Salisbury, North Carolina.  The John Locke Foundation (JLF) describes the cities of Morganton and Salisbury as examples of municipal broadband that “delivers harm, not help, to the competitive environment” in North Carolina. With respect to the “CoMPAS” (City of Morganton Public Antenna System) system in Morganton, JLF asserts that such harm to the community is evident in two actions by the city council.  The first harmful action, JLF claims, was the council’s decision to allow CoMPAS to borrow funds from two municipal funds. The same report on which JLF relies also states, however, that CoMPAS no longer operates at a loss and its loan repayments to those two funds will be complete in fiscal year 2014. Based on all the information in the report, there does not appear to be any evidence of harm to the community from the municipality’s decision to temporarily borrow money from two of its own reserve funds.  JLF’s second example of purported harm is the alleged cross-subsidization of CoMPAS cable rates by increases in taxes and electricity rates.  Significantly, the news report cited by JLF does not claim that any cross-subsidization actually occurred.  On the contrary, it reports that Morganton’s City Manager (a certified public accountant) said it had not occurred. (p.35)

Mount Vernon Mayor: Local Authority Has Been Good For Our City

As the time approached for FCC Commissioners to choose to allow Wilson and Chattanooga to serve surrounding communities, leaders from municipalities with publicly owned networks shared their experiences. Jill Boudreau, Mayor of Mount Vernon, Washington, published her community's experience with their muni in GoSkagit.com. 

As in the recent testimonial from Opelika Mayor Gary Fuller, Mayor Boudreau described how Mount Vernon's network has created a quality of life where high-tech has enhanced local medicine, encouraged new businesses, and created and environment rich with competition.

Mount Vernon's open access network provides infrastructure for nine service providers. Some of these providers offer services only to businesses, while others also serve government, retail providers, and specific industries such as the medical community. Hundreds of public and private customers receive fast, affordable, reliable connectivity through these providers and the city's publicly owned network.

We first introduced you to Mount Vernon in 2013. The community began deployment in 1995 and have added incrementally to the network to serve nearby Burlington and the Port of Skagit. Government facilities, schools, hospitals, and businesses save millions while utilizing top-notch technology. Businesses have relocated to the area to take advantage of the network and enjoy the high quality of life in the relatively affordable area with its abundance of outdoor recreation.

Mayor Boudreau recognizes that Mount Vernon's success may not be easy to come by for every community but believes each should have the ability to decide that for themselves. She writes:

When it comes to community growth and prosperity, next-generation Internet is vital infrastructure just like a road or sewer pipe. Though what we’ve built in Mount Vernon may not work in every city, each community should have the choice to pursue fast, affordable and reliable broadband in the way that works for them.