Louisville has overcome a tall hurdle in its efforts to bring better connectivity and more competition to the community through local control. On August 16th the U.S. District Court for the Western District of Kentucky supported the city’s one touch make ready (OTMR) ordinance. AT&T challenged the ordinance in court, but their arguments fell flat and court confirmed that the city has the authority to manage its rights-of-way with OTMR.

State Law

AT&T’s claim based on state law asserted that the city was overstepping its authority by enacting the OTMR ordinance because it was impinging on Kentucky Public Service Commission jurisdiction. AT&T attorneys argued that, according to state law, the PSC has exclusive jurisdiction over utility rates and services, but the court found that argument incorrect.

Within the state law, the court found that the OTMR ordinance fell under a carve-out that allows Louisville to retain jurisdiction over its public rights-of-way as a matter of public safety. The ordinance helps limit traffic disruptions by reducing the number of instances trucks and crews need to tend to pole attachments. The court wrote in its Order:

AT&T narrowly characterizes Ordinance No. 21 as one that regulates pole attachments. But the ordinance actually prescribes the “method or manner of encumbering or placing burdens on” public rights-of-way. … It is undisputed that make-ready work can require blocking traffic and sidewalks multiple times to permit multiple crews to perform the same work on the same utility pole…. The one-touch make-ready ordinance requires that all necessary make-ready work be performed by a single crew, lessening the impact of make-ready work on public rights-of-way. … Louisville Metro has an important interest in managing its public rights-of-way to maximize efficiency and enhance public safety. … And Kentucky law preserves the right of cities to regulate public rights-of-way. … Because Ordinance No. 21 regulates public rights-of-way, it is within Louisville Metro’s constitutional authority to enact the ordinance, and [the state law granting authority to the PSC] cannot limit that authority. 

Federal Jurisdiction

It’s been a long road for Pinetops, North Carolina, as they’ve sought better connectivity in their rural community. After dramatic ups and downs, the community seems to have finally found a tepid resolution. Greenlight can, for now, continue to serve Pinetops.

With Conditions

On June 28th, the General Assembly passed HB 396, which allows Wilson’s municipal network, Greenlight, to continue to provide gigabit connectivity to the town and to Vick Family Farms but establishes conditions. If or when another provider brings Fiber-to-the-Home (FTTH) service to Pinetops, Wilson has 30 days to end service as customers transition to the new provider. Until a different provider comes to Pinetops, Greenlight will continue to offer its gigabit connectivity to the approximately 600 households and premises in the community of about 1,300 people.

In addition to premises in the town of Pinetops, Greenlight is serving Vick Family Farm, a local potato manufacturer. When the business obtained access to high-quality Internet access, they were able to expand their business internationally; they invested in a high tech distribution facility. The facility requires the kind of capacity they can only get from Greenlight.

Community leaders in Pinetops are relieved they don’t have to give up fiber connectivity, but they’re happy with the service they get with Greenlight and would rather stick with the muni.

“Although not the solution we expected, we are pleased this bill allows us to continue to leverage Greenlight’s next generation infrastructure as we focus on growing our community,” said [Town Commissioner Suzanne] Coker-Craig. “Hopefully, no other provider will exercise the option to build redundant infrastructure that our community neither wants nor needs. Pinetops has made it clear that we want the quality and speed of service that only Greenlight can provide.”

Read the text of the bill here.

Preemption at the state and federal level threatens local telecommunications authority, as we’ve seen in about 20 states. When state laws usurp local governments’ ability to decide how they improve poor connectivity, they disregard an understanding of local affairs that is unique to each community. Some states are threatening to take preemption another damaging step farther with super-preemption.

Super-Preemption: "Super" In A Bad Way

The Campaign to Defend Local Solutions describes the problem like this:

State legislatures across the country have gone beyond preventing local governments from passing common-sense local solutions. They’ve begun silencing local voices using draconian super-preemption laws.  These laws allow special interest groups to sue local governments and in some cases personally sue local officials for doing their job. These laws are designed to intimidate, bully, and chill government at the local level. This infographic highlights where these laws exist, where they have been recently proposed, and what their impacts could be to cities, counties, local officials, and taxpayers alike.

Mayor Andrew Gillum from Tallahassee, Florida, recently spoke with Christopher and our Communications Manager Nick Stumo-Langer about super-preemption for episode 17 of the Building Local Power podcast. He noted that local governments need flexibility to meet the demands of local constituents:

“There’s a nimbleness to local governments that I think people have an appreciation for. The legislature [is trying to] exclude us from being able to make any investments in that space for the greater good.”

This is the transcript for Episode 244 of the Community Broadband Bits podcast. Christopher Mitchell speaks with Tom Stehn of West Plains, Missouri, on how the community is encouraging economic development. Listen to this episode here.

Tom Stehn: Businesses look to expand, move to other locations. There's usually five questions they ask, and one of them is always what kind of broadband do you have?

Lisa Gonzalez: This is episode 244 of the Community Broadband Bits Podcast from the Institute for Local Self-Reliance. I'm Lisa Gonzalez. West Plains, Missouri, located in the south central part of the state, is situated in the Ozarks, and known for its beautiful terrain, forests, and vistas. Despite attracting outdoor enthusiasts, the community has suffered some economic losses in recent years and is taking steps to boost economic development. Recently the city began offering high quality connectivity to local businesses. Tom Stehn, City Administrator, talks to Christopher this week about the city's foray into municipal Internet infrastructure. Tom describes how the city's plan to update municipal services led them to discover that local businesses also wanted better connectivity. He describes the city's project, their plan, and how they're starting out slowly to address any challenges they encounter along the way.

Christopher Mitchell: Hey everyone. I just wanted to thank you for listening and helping out to create a stronger Internet ecosystem, making sure everyone has high quality access. Please tell your friends, tell others who might be interested, about this show. If you have a chance to rate us on iTunes, please do. Several people already have. We really appreciate all of the comments, and we really appreciate you taking the time to listen to us.

Lisa Gonzalez: Now here's Tom Stehn, City Administrator, of West Plains, Missouri, talking with Christopher about the community's municipal fiber project.

Christopher Mitchell: Welcome to another edition of the Community Broadband Bits Podcast. I'm Chris Mitchell. Today I'm talking with Tom Stehn, the City Administrator of West Plains in Missouri. Welcome to the show.

Earlier this legislative session, we followed legislation in Virginia, which would have negatively impacted municipalities’ ability to use their publicly owned infrastructure to improve connectivity. We’re now watching a bill in Missouri that’s been resurrected from legislation that died last year. Another state bill just appeared on our radar in Georgia that interferes with local community authority by prescribing stringent rules on permitting and applications.

The Wrong Direction

When our Christopher saw it, he said: 

This is based on the false notion that cities are the barrier to better networks rather than recognizing the power of pole owners and existing attachers as a far more significant barrier.

The bill, HB 336 or the Broadband Strategy for All of Georgia Act, allows communities to be certified as “broadband ready,” which may allow providers that serve those communities eligible for state tax incentives. In order for a community to be certified as a “broadband ready community,” it must comply with a specific model ordinance, created by the state that dictates the process for reviewing applications for broadband projects.

The bill starts out all wrong, by defining broadband as 10 Megabits per second (Mbps) download by 1 Mbps upload. Clearly that indicates that its point of origin is the incumbent telephone companies who want to make it easier to provide their slow DSL, rather than encourage upgrades to the FCC definition of “broadband.” As a reminder, the federal government considers broadband to be 25 Mbps / 3 Mbps.

The process proposed in HB 336 assumes that local communities that are trying to protect their public spaces are the bad guys and any DSL or cable company who wants to insert their lines or equipment in public space is but a poor victim. The bill applies to any “public rights of way, infrastructure and poles, river and bridge crossings, or any other physical assets owned or controlled by the political subdivision.”

The Heavy Hand Of The State

While Tennessee Governor Bill Haslam’s “Tennessee Broadband Accessibility Act” has been in the news, several other Legislators have introduced companion bills earlier this month that deserve attention.

A Few Gems

SB 1058 and HB 0970, from Senator Janice Bowling and Representative Dan Howell, would allow municipal electric utilities, such as Chattanooga’s EPB, Tullahoma Utilities Board, or Jackson Energy Authority to expand beyond their electric service area. SB 1045 and HB 1410 reclaims local authority for municipalities that want to offer telecommunications service either alone or with a partner.

HB 0970 has been assigned to the House Business and Utilities Committee; SB 1058 was referred to the Senate Commerce and Labor Committee.

Bowling has also introduced SB 1045, a bill that allows municipal electric utilities and electric cooperatives the ability to offer telecommunications services either on their own or with private sector partners. SB 1045 and it’s companion, HB 1410, sponsored by Terri Lynn Weaver in the House, specifies that there are to be no geographic limits to the service area. SB 1045 and HB 1410 are also in the same committees as SB 1058 and HB 0970.

Correcting Existing Problems

The EPB challenged restrictive state law in 2015; the FCC determined that the law was inconsistent with federal goals. The agency preempted both Tennessee and North Carolina's laws that inhibit municipal electric utilities from expanding. When Tennessee and North Carolina appealed the FCC decision, however, the appellate court determined that that states had the right to impose those laws on local communities and reversed the preemption.

Chairman Tom Wheeler will be stepping down as FCC Chairman as of January 20, 2017; the day President Obama leaves office. The decision is not surprising, as FCC chairmen typically leave their position when a new administration takes the helm, but Wheeler had not yet made it official. His departure emphasizes the apprehensive uncertainty that has troubled advocates of municipal networks, local telecommunications authority, and network neutrality, as well as a long list of other public policy concerns that affect our future through technology.

In a statement released on December 15, Chairman Wheeler wrote:

“Serving as FCC Chairman during this period of historic technological change has been the greatest honor of my professional life. I am deeply grateful to the President for giving me this opportunity. I am especially thankful to the talented Commission staff for their service and sacrifice during my tenure. Their achievements have contributed to a thriving communications sector, where robust investment and world-leading innovation continue to drive our economy and meaningful improvements in the lives of the American people. It has been a privilege to work with my fellow Commissioners to help protect consumers, strengthen public safety and cybersecurity, and ensure fast, fair and open networks for all Americans.”

He Proved Himself

When Tom Wheeler was appointed as 31st Chairman of the FCC in November 2013, we had our concerns. He was following Julius Genachowski, one of the worst FCC Chairs in modern history, who had been appointed in Obama's first term. He had run both cable and wireless industry trade groups, but was strongly defended by Susan Crawford and Gigi Sohn when public interest groups opposed him. He strongly surpassed our hopes for what the FCC could achieve.