BroadbandNow.com — a company that mostly focuses on crunching different data sets to provide information on where broadband is available — has released its second report on municipal broadband barriers.
Their first one had some basic factual failings, and we were concerned that it would mislead people. The new report has corrected some of those errors, but it makes new ones that again lead us to caution against making decisions based on claims within it.
To be clear, we believe — after careful consultation with others that have long worked in this space — that the proper number of states to be considered preempting municipal broadband is 19.
Errors and Mischaracterizations
Again, we want to reiterate that we value BroadbandNow's contribution to information about where broadband is available based on crunching different databases. That is something they seem to have done better than most that have tried. However, their efforts to analyze the law and reality around barriers to municipal networks have too many simple errors that we find frustrating.
The single most egregious error is removing Arkansas from the list of states with barriers. Arkansas has taken limited steps to lessen preemption, but it continues to have more restrictions on municipal broadband than many of the states listed as more significant in the report.
Arkansas has long prohibited local governments that do not operate municipal electricity systems from building their own networks. Cities with public power have more freedom to do so. Arkansas is now allowing cities without electric departments to apply for broadband grants (the goal was to bring more federal dollars to Arkansas), but these cities can only build a municipal network if they receive a grant. BroadbandNow has misinterpreted that to mean there are no barriers. It is not easy to get a federal grant and the vast majority of municipal broadband networks have been built without grants.
BroadbandNow has correctly removed Connecticut from the list of states with barriers, but for the wrong reason. Connecticut had a law that allowed cities to attach to utility poles at no charge, an approach that is unheard of anywhere else where cities have to pay the same amounts as others. After the Public Utilities Regulatory Authority blatantly ignored the law in siding with legacy providers, the state Office of the Consumer Council sued to ensure the law was followed and ultimately prevailed.
During that time, cities were able to attach to poles on the same terms they can in any other state. Claiming this as a barrier to municipal broadband is misguided. However, we are excited to see how Connecticut's experiment moves forward in allowing cities this opportunity.
Consider the following passage from BroadbandNow's analysis of Missouri to further understand the confusion that they themselves have about state preemption:
Missouri state law outright bars municipalities from selling or leasing broadband services to residents. It also bars municipal governments from leasing broadband infrastructure to other communications providers. Municipalities may offer broadband service for use in internal government services, educational and emergency and healthcare scenarios, but are only able to offer “Internet-type services” to residents.
Their analysis is that Missouri municipalities can only offer "Internet-type sevices" to residents BUT that the law "outright bars" municipalities from selling or leasing broadsband services to residents. Mystifying. The challenge comes from understanding what "telecommunications" is defined as in any given state, which is why we consult with lawyers who specialize in this before we make broad claims. To be clear, the Missouri law is a barrier but cities that want to build a network that only offers broadband Internet access can and have done so.
BroadbandNow has also included a map of which states have the most barriers based on their own classification system of the barriers, but it offers no insight into which states are the worst for building municipal networks in. Their map suggests (perhaps unintentionally) that Wisconsin, Alabama, and Virginia are the worst. But North Carolina, Nebraska, South Carolina, Louisiana, and even arguably Minnesota are also among the worst. Which states are the most hostile to municipal broadband does shift slightly over time as business models and technology shift around the fixed statute language.
We appreciate that BroadbandNow is trying to capture some things that do not include classical municipal broadband prevention — like its inclusion of Connecticut's pole attachment oddity, though we believe they got the facts wrong in that case. But it still misses other state actions, like in Mississippi last year, that discourage municipal networks.
The result of this report may be helpful in encouraging the press to cover this issue more, and we are not in a position to question the results of their study that suggests states with barriers to municipal broadband tend to pay more for broadband. But the lack of rigor in the analysis on state broadband barriers makes us less confident in citing that work.