On September 6th, the Nashville Metro Council approved a proposed One Touch Make Ready (OTMR) ordinance by a wide margin of 32-7 on a roll call vote (computers were down). This was the second vote to advance the ordinance, designed to streamline deployment of fiber-optic networks in a city looking for better connectivity. Elected officials responded to Nashville residents who flooded their council members’ offices with emails.

The Nashville Metro Council will take up the ordinance one last time; passage could speed up competition in the country music capital. Google Fiber has been pushing for a OTMR, while incumbents AT&T and Comcast look for a non-legislative solution to the problem of the poles while protecting their positions as dominant Internet Service Players (ISPs).

Caught Between A Rock And A Hard Stick

The city of Nashville sits on limestone, a rock that cannot support the trenching and underground work of fiber deployment. The only other option is to use the utility poles. Eighty percent of the poles are owned by the public utility Nashville Electric Service (NES), but incumbent provider AT&T owns the other 20 percent. Google Fiber says it needs to attach fiber to 88,000 poles in Nashville to build its network and about half of those (44,000) need to be prepared to host their wires. 

Pole attachments are highly regulated, but there are still gray areas. Susan Crawford provides an overview of the policies and regulations on BackChannel; she accurately describes how poles can be weapons that guard monopoly position. Currently, each company that has equipment on the poles must send out a separate crew to move only their own equipment. This process can drag on for months. The OTMR ordinance is a deceptively simple solution to this delay. 

Deceptively Simple, But Regulated

At its simplest, OTMR means that one crew moves everything; the ordinance under debate in Nashville is actually more complicated than that. (Read...

In our last Community Broadband Bits podcast, Christopher and I discussed the August 10th U.S. Court of Appeals for the Sixth Circuit decision to reverse the FCC’s February 2015 ruling against state barriers. We mentioned Harold Feld’s article about the ruling posted on his website. In keeping with most matters of importance in the municipal Internet network field, Harold expertly sums up the history of the case, the arguments, and what the outcome could mean for the future.

Feld gets down into the crux of the argument that won over the three judges in the Sixth Circuit - the need to establish if it is states or federal agencies that make the decisions regarding whether or not local governments can provide telecommunications.

Determining the answer was a multi-step process and Feld explains how the FCC came to the conclusion that they had the authority to preempt the laws and the states' arguments against it. This was, after all, a test case and Feld describes why the FCC chose Chattanooga and Wilson.

Read more on Feld’s Tales of the Sausage Factory, where he speculates on how the big incumbent providers will react to their win and what is next for municipal network advocates. From Harold:

As with most things worth doing in policy land, it’s disheartening that it’s an uphill fight to get to rational policy. The idea that states should tell local people in local communities that they can’t invest in their own local infrastructure runs against traditional Republican ideas about small government and local control as it does against traditional Democratic ideas about the responsibility of government to provide basic services and promote competition. But that’s how things work in public policy sometimes. We can either give up and take what we get, or keep pushing until we change things for the better.

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...

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

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)