On October 21, 2019, The American Conservative published an article by the Institute for Local Self-Reliance's Christopher Mitchell. The article delves into how preemption affected the municipal broadband project in Lafayette, Louisiana. Christopher addresses the fact that many communities that have invested in local Internet networks have done so to fill a void in a manner that is based in self-determination. He also discusses the ways local government strengths lend themselves to the success of municipal networks and how somes states are making changes that may signal a shift in perspective.

We've reproduced the article in full here: 

Fleeced by the Telecoms and Your State is Blessing It

You may live in a place where the monopolies' lobbyists have more authority than your local government.

Joey Durel was not an obvious champion for building a municipal broadband network in his city. He owned multiple private businesses and was the head of the local chamber of commerce prior to becoming mayor of Lafayette, Louisiana, one of the most conservative urban centers in America.

In the early 2000s, like today, the big telephone and cable companies were extremely unpopular. DSL and cable Internet access were growing, but smaller markets like Lafayette always had to wait to get the speed upgrades they saw the larger cities getting. However, Bellsouth (now AT&T) and Cox were not slow to increase prices, which led to obvious customer frustration.

When first presented with the idea of a city-run network, Durel was skeptical but open minded. He looked toward the Lafayette Utility System, which already handled electricity, water, and wastewater for the community—and had a much better reputation than the cable and telephone monopolies—to make an assessment.

Durel soon determined that a city-run broadband network would provide better services at lower prices than Bellsouth or Cox, but he was under no illusion those companies would go quietly into the night. However, he probably didn’t expect such a challenge to his authority—a challenge that went right up to the state legislature to stop him. This was preemption, and Durel was about to get one heck of an education in how monopolies use the levers of government to get what they want.

Preemption is when...

For community leaders, advocates, and researchers who follow broadband policy, trying to stay up-to-date on the many variations of state policy across the U.S. is a daunting task. As approaches change, the work becomes more complicated. Now, the Pew Charitable Trusts has launched a new tool that helps keep all that information sorted and accessible — the State Broadband Policy Explorer. Manager of the Broadband Research Initiative at Pew Charitable Trusts Kathryn de Wit sits down with Christopher to talk about the tool for this week's podcast.

Kathryn describes some of the challenges and discoveries her team encountered while developing the tool. She talks about the wide variations her team documented, especially in definitions, and their determination that those variations rely on who in each state determines which definitions will be used.

While working on the State Broadband Policy Explorer, Kathryn and her team were surprised to learn that, contrary to popular reporting, not as many states have established official offices of broadband deployment as they had expected.  She shares commonalities between states that they found surprising while she and Christopher ponder some of the many ways the tool may be used moving forward.

We've already bookmarked this valuable tool.

Check out the State Broadband Policy Explorer for yourself here.

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

This show is 27 minutes long and can be played...

Municipal broadband networks already serve more than 500 communities across the country, but some states are trying to keep that number from growing. Nineteen states have established legal barriers or even outright bans on publicly owned networks, according to well-respected communications law firm Baller Stokes & Lide.

These state laws, often enacted at the behest of large telecom monopolies, slow the development of community owned connectivity in various ways. From Alabama to Wisconsin, states have implemented everything from direct prohibitions on municipal networks to oppressive restrictions and requirements that limit competition.

The outlook for municipal connectivity may be starting to improve though, despite incorrect reports that state-level broadband preemption increased over the past year. Baller Stoke & Lide’s list of states with restrictions on municipal broadband investment actually shrunk this year from 20 states to 19 — a result of downgrading Colorado’s SB 152 from bonafide barrier to mere annoyance. Still, barriers to community networks remain in more than a third of all states, leaving millions of Americans unconnected and tens of millions more without local Internet choice.

Bans, Blocks, and Burdens

Common approaches to preempting municipal broadband networks range from straightforward bans to confusing financial restrictions and complicated legal requirements. While some states have established one main barrier to community broadband, many more have adopted a bird’s nest of regulations that kill any possibility of municipal connectivity, if only because of the legal uncertainty created by complex and vague laws.

Out of the 19 states with restrictions on municipal networks, a few explicitly ban local governments from providing communications services to their citizens. In Nevada, only municipalities with less than 25,000 people and counties with less than 55,000 people can offer telecommunications services. Both Arkansas and Tennessee bar municipalities without electric utilities from providing Internet access in most situations. Yet other states restrict where government utilities can deploy broadband or what types of services they can offer...

When utilities, including broadband providers, need to cross railroad rights-of-way to serve customers, some railroad operators have been known to press their advantage. Several states have addressed utility complaints by establishing standardized rates and setting up processes to create a more reasonable and predictable system. Eliminating this obstacle to deployment is another step in bringing broadband to the communities that need it the most.

Party Concerns

Often railroads obtained title to real property during 19th century acquisitions as the infrastructure was being built. They want to preserve as much of their authority and title rights as possible and to ensure that they can receive the maximum value for their interest in the land.

For utilities, cost of deployment is a primary concern. When railroads demand unreasonable fees at crossings or drag out negotiations as a delay tactic, they also impinge on a utility’s ability to meet operational deadlines. Safety and engineering integrity can be negatively impacted by difficult negotiations, unreasonable demands, or exorbitant costs.

Different States, Different Stories

Few states have addressed the problem with statutes establishing standard utility fees for railroad right-of-way crossings. David L. Thomas, Managing Member of the strategic utility planning firm Eagle 1 Resources (E1R) has worked with telecommunications companies and other utilities to negotiate railroad crossing arrangements. He's seen that standard crossing fees set down in statute benefit deployment by ending delay and reducing costs and would like to see the trend pass to every state.

In South Dakota and Iowa, the fee had been established at $750. Wisconsin allows railroads to charge $500 [PDF see page 12] and state law in Illinois, where railroads have a strong presence in metro areas,...