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NYTimes Examines Sixth Circuit Reversal: Potatoes And Pinetops

The Sixth Circuit Court of Appeals issued their order on August 10th supporting the states of Tennessee and North Carolina in their challenge from an FCC decision from February 2015. Both states objected to the FCC’s decision to preempt state laws preventing municipalities from providing fast, affordable, reliable connectivity via municipal Internet networks. The Appellate Court Judges reviewed the legal arguments, the precedent, and the interplay between federal authority and state sovereignty. 

The impact of their ruling will affect more than a few pages in a law school text book. Access to high-quality Internet access positively impacts real people and businesses and, as Cecila Kang captures in her recent article in the New York Times, the people who depend on it fear the outcome if their state legislators take it away.

Family Farm Fear

Kang profiles Vick Family Farms, a family potato farm in Wilson, North Carolina.  The Vick family chose to invest in a processing plant when they learned that Wilson’s Greenlight would provide the necessary connectivity. Greenlight allowed them to increase sales overseas. Now, they may lose that connection:

“We’re very worried because there is no way we could run this equipment on the internet service we used to have, and we can’t imagine the loss we’ll have to the business,” said Charlotte Vick, head of sales for the farm.

As Kang notes in her article, the FCC has no plans to appeal the decision, so battles will resume at the state level. Advocates will need to be twice as vigilant because incumbents - the only ones that come out ahead from this decision - may try to push state legislators for even tougher anti-competitive state barriers.

Pinetops: Poster Child For Good Connectivity

Kang checks in on the small town where Wilson’s Greenlight began offering Fiber-to-the-Home (FTTH) Gigabit service about 14 months ago. Pinetops, a nearby community of about 1,300 people, sought help from Wilson in the hopes that Greenlight would spark economic activity in their struggling community. Centurylink, the incumbent only offered DSL, grossly inadequate for local businesses. 

When Greenlight expanded to Pinetops, the town saw the beginning of a rebirth of sorts. Now the community waits in limbo, wondering what will happen next.

Kang introduces readers to Tina Gomez:

Tina Gomez, a Pinetops resident, quickly saw Greenlight’s benefits. She recently got a telework job with General Electric, which requires reliable high-speed internet service to run a customer service software program. Ms. Gomez, 37, also started online courses in medical billing and coding. Before subscribing to Greenlight, finding telework was a challenge because the existing home internet service was too slow, she said.

Now the political squabble over broadband may hurt her livelihood. Mark Gomez, Ms. Gomez’s husband, said they would move from Pinetops to Wilson when their broadband service was disconnected.

“We can’t stay if the basic services we need aren’t here,” Ms. Gomez said.

Beyond The Courtroom

Executive Director of Next Century Cities Deb Socia summed it up when she told Kang:

“This is about more than North Carolina and Tennessee...We had all looked to the F.C.C. and its attempt to pre-empt those state laws as a way to get affordable and higher-quality broadband to places across the nation that are fighting to serve residents and solve the digital divide.”

For Rural Pinetops, Being A Gigabit Community Means Business In North Carolina

Unless you live in a rural community, you probably assume becoming a Gigabit community is all about the miracles of speed. Speed is important, but so is Internet choice, reliable service, and respectful customer service. It’s also about being excited as you consider future economic opportunities for your rural town.

Businesses Struggling With Old Services

Before Greenlight began serving Pinetops, the best community members could get was sluggish Centurylink DSL. Suzanne Coker Craig, owner of CuriosiTees, described the situation for her business:

Suzanne used to be a subscriber to Centurylink DSL service at her Pinetops home, but years ago she just turned it off. “We weren’t using it because it used to take forever; it just wasn’t viable.” She now has Greenlight’s 40 Mbps upstream and downstream service. “It’s just so very fast,” she said.

Her business, a custom screen printing shop, uses an “on-time” inventory system, so speed and reliability is critical for last-minute or late orders:

“We work with a Charlotte company for our apparel. If we get our order in by 5 p.m. from here, the next day it will be delivered. That’s really important for business.” Before Greenlight, Suzanne described how “We had been sweating it out.”  Suzanne’s tee-shirt store only had access to 800 Kbps DSL upload speed. She would talk to the modem. “Please upload by 5 p.m. Please upload.” Now she can just go home and put her order in at the last minute. “We are comfortable it will upload immediately….It’s just so much faster. Super fast…Having Greenlight has just been very beneficial for our business.” 

She also subscribes to Greenlight from home and her fiber connection is able to manage data intense uploads required for sending artwork, sales reports, and other large document transfers. As a Town Commissioner, Suzanne sees Greenlight service in Pinetops as more than just a chance to stop "sweating it out."

“I just see a brighter future for our town now,” she reflected. “It’s a neat selling point. It’s difficult in small rural areas to get good technology-based companies. This now opens the door for us to recruit just those kinds of businesses…It’s hard to imagine a business that does not need Internet access.” 

Without Reliability, Speed Is Nothing

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Brent Wooten is a sales agent and Manager for Mercer Transportation, a freight management business with an office in tiny, rural Pinetops, North Carolina. Pinetops is now served by Wilson’s community-owned, Gigabit fiber network, Greenlight.  Brent’s work, moving freight across the country via trucks, requires being on time; he’s an information worker in a knowledge economy.  “I am in the transportation business,” said Brent. “Having reliable phone and Internet are critical to running my businesses.” Being off line means losing businesses and never getting it back.

Before Greenlight came to town, Brent’s business paid Centurylink $425 per month for a few phone lines, long distance, an 800 number, and Internet access at 10 Megabits per second (Mbps) download and 1.5 Mbps upload. He was also wasting hours and even days each month trying to get his Internet fixed. “Every time they would tell me the problem was my equipment. It was always my fault.” But Brent had an IT expert on hire. “Never once was the problem actually my equipment.” He described long waits to reach customer agents whose heavy foreign accents made communication difficult and about the company’s unresponsive office hours. “I was told they could send someone the next afternoon, but I needed the network to work now....”

Brent’s experience with Greenlight was the complete opposite. When Brent’s corporate office changed the location of their backup servers, Greenlight staff were helping him at 6:00 a.m. and at 10:00 p.m., and were on the phone within seconds of his call. “It is a very refreshing situation for me -- the consistency of service, and the responsive and respectful customer service by local workers.” 

Internet Choice

When Greenlight came to the community, Centurylink changed their tune. Within hours of his business phone being ported to Greenlight, a Centurylink representative called him. “He offered to cut my current prices in half and double my Internet speed, from 10 to 20 Mbps…My Centurylink 10 Mbps speed never tested at more than 6 Mbps.”

Brent chose to keep his Centurylink phone service, but he kept his 25 Mbps symmetrical Greenlight Internet service because upload speed is critical to his business. “My computer screens don’t freeze up anymore. Greenlight service is flawless. The sheer speed of fiber is amazing and they are available 24 hours a day, I am served by local workers, it is saving me money and I get better service.” 

Greenlight brought Brent residential telephone and internet choice for the first time in more than a decade. “Greenlight saves me $140 a month at home,” he bragged. When Greenlight’s marketing director first arrived at Brent’s house, he learned Brent was being charged twice for his internet service. Brent had an in-law suite attached to his house where his mother used to live. “The Centurylink representative on the phone said I needed to have a second DSL account.” Not with Greenlight.

An Odd Way Of Competing

Brent described how he had been a Centurylink residential customer since 1989. “When I called to cancel my home telephone service, the woman just gave me my confirmation number and told me to have a nice day.” No attempt was made to keep Brent’s residential business.  “They did the same thing on my mom’s phone line. She had telephone service since before 1968.” When she passed away, Brent called to disconnect her line. “The person on the other end of the line did not even offer condolences.” He compared that to the human touch that originates from a service company that is community owned: “Greenlight’s installers even cared enough about my welfare to tell me they had discovered a water leak under my house when doing the installation. They told me they would have tried to fix it for me but they did not have the right tools.”  

The Intangibles

How do you put a value on the intangibles?  For Brent Wooten, Greenlight fiber service has not only strengthened his ability to do business, but has given the community a sense of hope that didn’t exist before access to fiber.

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“As a citizen and Town Commissioner, I am extremely excited to have the opportunity to have access to this service, and super excited about future opportunities that it will make available to us. It is an example of hometown people who care about serving you and bringing a higher quality of living to the community...It gives a sense of hope for Eastern North Carolina ... not just lip service.” 

Will It Last?

On August 10, 2016, the U.S. Court of Appeals for the Sixth Circuit reversed the FCC ruling that permitted Greenlight to expand to its fiber-optic service to Pinetops. What this means for these businesses and residents who now rely on fast, affordable, reliable Internet access remains to be seen. Along with Suzanne, Brent, and the rest of Pinetops, we hope Greenlight is able to continue to serve this rural community. They are using fiber to reach for new economic development opportunities and in only a few months, the community of 1,300 is optimistic about a future with better connectivity.

Major Media Outlets Cover 6th Circuit Decision Limiting Local Authority

Various Sources, August 10-11, 2016

A circuit court decision this week means the digital divide in Tennessee and North Carolina will be allowed to continue. This week, the 6th Circuit Court of appeals decided to dismiss the FCC's decision to encourage Internet investment by restricting local authority to build competitive Internet networks. In February, ILSR and Next Century Cities filed an Amicus Brief in support of the FCC's position. Here is a selection of media stories which cite ILSR.

MEDIA COVERAGE - "Court of Appeals Overrules FCC Decision"

Cities looking to compete with large Internet providers just suffered a big defeat by Brian Fung: The Washington Post, August 10

There are signs, however, that municipal broadband proponents were anticipating Wednesday's outcome — and are already moving to adapt. One approach? Focus on improving cities' abilities to lay fiber optic cables that then any Internet provider can lease; so far, only one state, Nebraska, has banned this so-called "dark fiber" plan, said Christopher Mitchell, who directs the Institute for Local Self-Reliance's Community Broadband Networks Initiative.

"We're pursuing strategies that are harder for the cable and telephone companies to defeat," said Mitchell.

Circuit court nixes FCC’s effort to overturn North Carolina, Tennessee anti-municipal broadband laws by Sean Buckley: Fierce Telecom, August 10, 2016

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However, pro-municipal broadband groups like the Institute for Local Self-Reliance, which filed an amicus brief in support of the FCC's position, said they are "disappointed that the FCC's efforts to ensure local Internet choice have been struck down.”

Court Deals FCC a Big Blow in Municipal Broadband Ruling by Alex Byers: PoliticoPro August 10, 2016 (subscription needed)

For now, proponents of the FCC’s order said they would work state-by-state to change laws restricting municipal broadband networks. Christopher Mitchell, director of the Institute For Local Self-Reliance’s Community Broadband Networks program, said the FCC order highlighted the issue and inspired other communities. “The FCC may have lost the case but they’ve still done a service for America,” Mitchell said. “In making the decision that was later overturned, they certainly elevated the issue.”

Analysis: The government just lost a big court battle over public Internet service by Brian Fung: Chicago Tribune, August 11, 2016

Congress Should Support Community Broadband Networks, Advocates Say by Sam Gustin: Motherboard Vice, August 11, 2016

“I would love to see renewed enthusiasm around this bill, and I would love to see it pass,” Christopher Mitchell, Director of Community Broadband Networks at the Institute for Local Self-Reliance, told Motherboard. But with Republicans currently in control of both the House and the Senate, Booker’s bill has virtually no chance of becoming law, especially given the tremendous amount of political influence wielded by the likes of Comcast and AT&T, Mitchell said. He warned that even if the legislation moved forward, industry-friendly lawmakers could try to weaken the bill or insert anti-community broadband provisions... “With the GOP in control, Marsha Blackburn would crush this legislation,” Mitchell said. “That’s why she gets more money from the cable and telecom industry than anyone else. She would make sure it doesn’t go anywhere.”

U.S. court rules FCC lacks authority to upend state bans on community-run broadband by Aaron Sankin: Daily Dot, August 11, 2016

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Last year, the FCC made a bold push to let cities and counties around the county make significant investments in their high-speed internet infrastructure. On Wednesday, a trio of federal judges dealt that effort a major setback... “We thank the FCC for working so hard to fight for local authority and we hope that states themselves will recognize the folly of defending big cable and telephone monopolies and remove these barriers to local investment,” Mitchell said in a statement. “Communities desperately need these connections and must be able to decide for themselves how to ensure residents and businesses have high quality Internet access.”

Federal court blocks FCC efforts to protect municipal broadband expansion by Alex Koma: StateScoop, August 11, 2016

Indeed, Chris Mitchell — director of the community broadband initiative for the Institute for Local Self-Reliance — argues that “states have gotten away with pulling a fast one in terms of lying about their intentions,” claiming that the matter isn’t so easily dismissed as a question of federalism. “The challenge is understanding whether these states are regulating their cities or regulating interstate commerce, as the FCC argued, and I think that these states are clearly trying to regulate internet access, as opposed to just what these cities could do,” Mitchell said. “I don’t think the court really got that.”

Next Steps Pondered After Muni Cable Ruling by Gary Arlen: Broadcasting and Cable, August 11, 2016

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"Once there's light shined on those laws, enough state legislators will decide it's time to stand up to the incumbents," said Mark C. Del Bianco, an attorney who represented Next Century Cities and the Institute for Local Self-Reliance, two advocacy groups that supported the efforts of Chattanooga, Tenn., and Wilson, N.C., to build competitive high-speed networks for their citizens."

Court Says FCC Can't Stop States from Blocking City Broadband Efforts by Shirley Siluk: NewsFactor Network August 11, 2016

"We're in a better place now that we had been [before] the FCC order," Mitchell told us today. "More communities have been inspired. We've seen a remarkable increase in the number of municipalities promoting access."

Mitchell said FCC commissioners who supported the order deserve a lot of credit for such developments. Mitchell said that outside of efforts in Tennessee and North Carolina, his organization's work to promote local broadband development will continue uninterrupted.

Photo of the newspaper stack courtesy of Globalimmigrantnews through Wikimedia Commons. 

Press Release: The 6th Circuit Court of Appeals decided to dismiss the FCC's decision to encourage Internet investment in Tennessee and North Carolina

The 6th Circuit Court of Appeals decided to dismiss the FCC's decision to encourage Internet investment in Tennessee and North Carolina

Minneapolis, MN - The 6th Circuit Court of Appeals decided today to dismiss the FCC's February 2015 decision to encourage Internet investment in Tennessee and North Carolina. Tennessee and North Carolina had both restricted local authority to build competitive networks.

"We're disappointed that the FCC's efforts to ensure local Internet choice have been struck down," says Christopher Mitchell with the Institute for Local Self-Reliance. "We thank the FCC for working so hard to fight for local authority and we hope that states themselves will recognize the folly of defending big cable and telephone monopolies and remove these barriers to local investment. Communities desperately need these connections and must be able to decide for themselves how to ensure residents and businesses have high quality Internet access."

ILSR and Next Century Cities filed an Amicus brief in support of the FCC's position. View the Court's Opinion here.

Contact:

Rebecca Toews

rtoews@ILSR.org

612-808-0689

Sixth Circuit Court of Appeals Reverses FCC In Disappointing Ruling

Disappointing news from the U.S. Sixth Circuit Court of Appeals today as the Court chooses to reverse the FCC’s February 2015 preemption order that peeled back restrictive state laws in Tennessee and North Carolina. We have the opinion for you to download and review. You can also view the decision at the Sixth Circuit's website.

We consider the Sixth Circuit’s decision disappointing, incorrect, and we hope the FCC and the cities of Chattanooga and Wilson appeal this decision. Local connectivity and telecommunications should be determined by the people who will be affected by their own decisions, not by officials who are distant, unaware of local matters, and lobbied by rich corporate Internet Service Providers with an interest in limiting competition.

Anti-Monopoly, Pro-Internet Access Groups React

In their statement, Next Century Cities, who joined us in filing an Amicus Brief, said, "Today’s court ruling is a setback in the fight to ensure access to next-generation broadband for more Americans, and Next Century Cities is disappointed by this decision."

The Open Technology Institute (OTI) responded by pointing out that, while the effort to restore local authority has stalled, the FCC's action has focused new attention on the benefits of local publicly owned networks:

“Today’s ruling doesn’t change the fact that these laws were hurting communities in Tennessee and North Carolina. They were written by telecom industry lobbyists to protect incumbents like AT&T and Comcast from competition. Similar laws exist in other states, and they all need to go. State legislatures should repeal these laws and replace them with ones that promote competition and consumer choice.

Although the FCC lost this particular case, the agency’s efforts put a spotlight on these pernicious laws and gave momentum to repeal efforts in statehouses across the country. The case also highlighted the success of locally grown networks, which are typically faster and more affordable than anything offered by private industry. Every community should have the ability to make smart investments in this type of infrastructure.”

Baller, Stokes & Lide, the lead counsel to EPB and Wilson, pointed out that this is only one battle in a war for restoring the rights of communities to pursue their own Internet infrastructure decisions:

“This is a very disappointing decision, but support for local Internet choice is growing rapidly across America, and the fight to preserve, protect, and advance community decision-making will go on,” said Jim Baller. 

The Coalition for Local Internet Choice (CLIC) and Common Cause also released statements that expressed deep disappointment and a resolve to press on to restore local authority. Common Cause Special Advisor Michael Copps, himself a former FCC Commissioner, stated:

"This decision does not benefit our broadband nation. Nor is it a good reading of the law. But if the FCC cannot set aside these bad laws, then the people must. We will redouble our state-by-state efforts to repeal these odious policies.”

FCC Commissioners Also React

Read their statements about the decision that reversed the Commission's action:

To learn more about the decision, check out our prior coverage:

If you really want to understand this issue well, we recommend Harold Feld's discussion of it on the Wetmachine group blog.

More to come. We will comment further as we dig into the Opinion...

Greenlight Upgrades Pinetops, North Carolina, With FTTH

In April, Wilson’s, municipal fiber network, Greenlight, expanded to pass every home in neighboring rural Pinetops. How is it going? Acting Town Manager, Brenda Harrell said, “We just love it!”

No Longer Out of Reach

Pinetops is about a 20 minute drive due east from Greenlight’s operations center, but more importantly, it is in another county entirely. Wilson serves six neighboring counties with its municipal electric services. Turning on internet service in Pinetops was an easy reach for Wilson, where fiber was being deployed as part of an automated meter infrastructure project.

Back in February 2015, the FCC preempted a North Carolina state law, known as H129, that prohibited Wilson from serving any residents outside of Wilson County. The preemption allowed Wilson to finish the project it had to suspend when H129 became law. In addition to the benefits of automated metering, Pinetops now experiences a higher quality of life with fast, affordable, reliable Internet access.

Greenlight To The Present

For Pinetops, bringing fiber services to its residents and small businesses was like snapping it from the late 1980s into the 21st century. Pinetops is a community with about 600 homes all located within one square mile. It is by all signs rural, surrounded by huge open fields of sweet potatoes, tobacco and soy plants. The average median income is $26,333; according to the census bureau, 30 percent of its residents live below the poverty line. Local officials, say that the community was desperately underserved with unreliable DSL service or dialup before Greenlight came to town. Thanks to Wilson, even the local Piggly Wiggly market has fiber-optic Internet from Greenlight.

Looking Ahead

The community is excited for its future. After watching a video of how quickly video homework can be uploaded on a Gigabit connection (8 seconds) versus DSL (2 hours and 59 minutes), the new Town Manager, Lorenzo Carmon, was full of ideas. Pinetops, with median homes valued around $78,000 and the option of Gigabit speeds (1,000 Megabits per second), could offer low cost affordable housing to professionals now living in Greenville, a nearby university community full of doctors, students, digital artists and knowledge workers.

 “If the private sector is not providing the services, the government has to step in,” said Pinetops new Town Manager, Lorenzo Carmon. “The internet is just like electricity. You can’t live without it.”  

Listen to the Lawyers: Audio of Oral Arguments Now Available in TN/NC vs FCC

Attorneys argued before the Sixth Circuit Court of Appeals on March 17th in the case of Tennessee and North Carolina vs the FCC. The attorneys presented their arguments before the court as it considered the FCC's decision to peel back state barriers that prevent local authority to expand munis.

A little over a year ago, the FCC struck down state barriers in Tennessee and North Carolina limiting expansion of publicly own networks. Soon after, both states filed appeals and the cases were combined.

You can listen to the entire oral argument below - a little less than 43 minutes - which includes presentations from both sides and vigorous questions from the Judges.

To review other resources from the case, be sure to check out the other resources, available here, including party and amicus briefs.

TN and NC vs. FCC: Oral Arguments Scheduled for Thursday, March 17th

This Thursday, March 17th, attorneys for the FCC and the states of Tennessee and North Carolina will present arguments to the Sixth Circuit Court of Appeals on a case that could define parameters for publicly owned Internet networks. The proceedings begin at 9 a.m. eastern. Each side has 15 minutes to present.

As we reported a year ago, the FCC ruled that state barriers in Tennessee and North Carolina limiting expansion of publicly own networks are too restrictive and threaten the U.S. goal of expanding ubiquitous access. The FCC overruled the harmful state laws but soon after, both states filed appeals.

The cases were consolidated in the Sixth Circuit and a number of organizations, including ILSR, offered Amicus briefs. We have collected all the briefs and made them available for you here. As most of our readers will recall, the case focused on Chattanooga and Wilson, two communities that know the many benefits of publicly owned networks.

So, when you raise your glass of green beer on Thursday to celebrate St. Paddy's, send some luck to our friends in Wilson, Chattanooga, and the FCC!

Wilson Moves to Expand Greenlight Network to Neighboring Town

Thanks to a new interlocal agreement, the City of Wilson, North Carolina will soon expand its Greenlight community broadband network to the nearby Town of Pinetops. Officials expect to complete the expansion of the gigabit fiber network by April 2016. Pinetops, a town of 1,300, is less than 20 miles from Wilson, population 50,000.

We’re Waiting...

For Brenda Harrell, Pinetops Interim Town Manager, the agreement has been a long time coming after years of frustration over their limited broadband access options.

“Current providers haven’t made significant upgrades to our broadband service through the years,” “They haven’t found us worth the investment. Through this partnership with Greenlight and our neighbors in Wilson, we are able to meet a critical need for our residents.”

As far back as 2010, city leaders in Wilson were in negotiations with Pinetops officials on a proposal to expand the Greenlight network to reach Pinetops. But those negotiations reached an impasse in 2011 when the State of North Carolina passed H129. Since then, officials in Wilson and in surrounding communities have been waiting for a time when Wilson could extend their the Greenlight network footprint.

The new agreement became possible in the wake of the FCC decision in February to overturn North Carolina’s anti-muni HB 129, allowing North Carolina communities to start considering the option to build their own broadband networks or expand on existing networks. While the state has appealed that decision in hopes of preserving the law, this agreement indicates Wilson officials are looking confidently ahead with the expectation that the state’s appeal will fail.

Looking Back, and to the Future

Last November, when the New York Times wrote about the fight in communities around the nation for the right to build and expand community broadband networks, they talked to Gregory Bethea, the now retired town manager of Pinetops, North Carolina:

“If you want to have economic development in a town like this, you’ve got to have fiber,” Bethea told them.

And that’s what this agreement is about: giving Pinetops the local authority necessary to create their own economic opportunities.

In that article the Times also quoted Will Aycock, the General Manager of Wilson’s Greenlight network. At the time, Aycock was already looking beyond the state’s anti-muni law to future expansion:

“We would probably be building tomorrow if the law changed today,” Mr. Aycock said. “We’re not saying that we’re going to build out all of eastern Carolina or even all of our service territory tomorrow. But there are areas where we’d like to go now.”

With this new agreement in place, Aycock is now able to see those plans for expansion come to fruition. Upon reaching the agreement, he said:

“Our commitment to improving the delivery of City services through our smart grid initiatives has made broadband service to Pinetops possible, as the same fiber that supports the smart grid system will be leveraged to deliver next generation broadband.” 

No Love Lost Between North Carolina A.G. And State Barrier

The State of North Carolina is currently awaiting a decision from the U.S. Sixth Circuit Court of Appeals as the court considers the FCC's February decision to roll back state barriers. North Carolina Attorney General Roy Cooper's office is heading up the state's appeal, but is his heart in it?

Cooper is running for governor and, in a recent interview, expressed his views about H129, the focus of the appeal in North Carolina [emphasis ours]:

The Legislature has passed a lot of bad laws, but it is the job of the attorney general to defend state laws...And I wish the governor and the General Assembly would stop passing so many bad laws that create litigation. We’ve seen that in many instances. This is another situation where the attorney general’s office is duty bound to defend state law.

"Bad law" accurately describes H129, which is the reason why the FCC rolled it back in February. Perhaps Cooper's candid comment suggests that, if he one day becomes Governor, he will work with his colleagues in the state legislature to repeal it.

Rather than having to contend with this type of "bad law," local communities need the authority to make their own telecommunications decisions. After all, local folks are the ones that live with the results.