Cybertelecom Federal Internet Law & Policy An Educational Project

Municipal Broadband

"Cities are [taking advantage of broadband technology.] Spokane, Washington, yesterday established a wi-fi hot zone that allows users within a hundred block area of the city to obtain wireless broadband access. Imagine if you’re the head of a chamber of commerce of a city, and you say, ‘Gosh, our city is a great place to do business or to find work. We’re setting up a wi-fi hot zone, which means our citizens are more likely to be more productive than the citizens from a neighboring community.’ It’s a great opportunity . . . [T]his is a very exciting opportunity for the country. - The White House, President Bush: High Tech Improving Economy, Health Care, Education (June 24, 2004).

“I think we do a grave injustice in trying to hobble municipalities. Why don’t we encourage [municipal broadband] instead of having bills introduced [saying] – ‘Oh, you can’t do this because it’s interfering with somebody’s idea of the functioning marketplace’ – but the marketplace is not functioning in those places. - Michael Copps, Commissioner, Federal Communications Commission

To put this in context, imagine if Borders and Barnes & Noble, claiming it was killing their book sales, asked lawmakers to ban cities from building libraries. The legislators would laugh them out of the State House. Yet the same thing is happening right now with respect to Wi-Fi and other municipal broadband plans, and it is being taken all too seriously. - Municipal Broadband: Should Cities Have a Voice, Jon Leibowitz, FTC Commissioner Sept. 2005

• See also Wireless Networks | Wifi Networks | Community Networks

History: Municipality involvement in communications has a long history.

• The USG funded part construction of the early telegraph network, funded its coast to coast expansion, and gave 1500 miles of telegraph line to Western Union after the civil war.
• Before the turn of the century, when Alexander Graham Bell's telephone patent expired, there was an onslaught of new independent telephone companies. Municipalities were involved in franchising the new local telephone services, finding them to be common carriers, granting them authority to operate, and setting fair rates.
• During World War I, AT&T was nationalized, and competition was illegal.

FTC

• FTC Report: Should Municipalities Provide Wireless Internet Service? Oct 2006

FCC

• FCC RELEASES MEMORANDUM OPINION AND ORDER PREEMPTING CERTAIN CHALLENGED PROVISIONS OF TENNESSEE AND NORTH CAROLINA LAW RESTRICTING MUNICIPAL PROVISION OF BROADBAND SERVICE.   Granted the preemption petition of the Electric Power Board of Chattanooga, TN, and granted in part the preemption petition of the City of Wilson, NC, finding that they are barriers to broadband infrastructure investment and thwart competition. (Dkt No.  14-116 14-115 ). Action by:  the Commission. Adopted:  02/26/2015 by MO&O. (FCC No. 15-25).  WCB  https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-25A1.docx
  https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-25A2.docx
  https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-25A3.docx
  https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-25A4.docx
  https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-25A5.docx
  https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-25A6.docx
  https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-25A1.pdf
  https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-25A2.pdf
  https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-25A3.pdf
  https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-25A4.pdf
  https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-25A5.pdf
  https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-25A6.pdf
• STATEMENT BY CHAIRMAN TOM WHEELER ON COMMUNITY BROADBAND.  STMT. OCHTW  https://apps.fcc.gov/edocs_public/attachmatch/DOC-331805A1.docx
  https://apps.fcc.gov/edocs_public/attachmatch/DOC-331805A1.pdf
• FCC GRANTS PETITIONS TO PREEMPT STATE LAWS RESTRICTING COMMUNITY BROADBAND IN NORTH CAROLINA, TENNESSEE.   Opened the door for two community broadband providers to expand service, preempting state laws in Tennessee and North Carolina that prevented these and similar broadband providers in the two states from meeting local demand for broadband service.  News Release. Adopted:  02/26/2015. News Media Contact: Mark at 0253, email: Mark.  WCB  https://apps.fcc.gov/edocs_public/attachmatch/DOC-332255A1.docx
  https://apps.fcc.gov/edocs_public/attachmatch/DOC-332255A2.docx
  https://apps.fcc.gov/edocs_public/attachmatch/DOC-332255A3.docx
  https://apps.fcc.gov/edocs_public/attachmatch/DOC-332255A4.docx
  https://apps.fcc.gov/edocs_public/attachmatch/DOC-332255A5.pdf
  https://apps.fcc.gov/edocs_public/attachmatch/DOC-332255A6.docx
  https://apps.fcc.gov/edocs_public/attachmatch/DOC-332255A1.pdf
  https://apps.fcc.gov/edocs_public/attachmatch/DOC-332255A2.pdf
  https://apps.fcc.gov/edocs_public/attachmatch/DOC-332255A3.pdf
  https://apps.fcc.gov/edocs_public/attachmatch/DOC-332255A4.pdf
  https://apps.fcc.gov/edocs_public/attachmatch/DOC-332255A6.pdf
• STATEMENT FROM FCC CHAIRMAN JULIUS GENACHOWSKI ON PROPOSED MUNICIPAL BROADBAND LEGISLATION.  STMT. TXT
• Statement by FCC Commissioner Mignon L Clyburn on Proposed Anti-Municipal Broadband Legislation, April 4, 2011“I recently learned that several state legislatures are considering bills that are contrary to the deployment objectives of the Broadband Plan. For example, in North Carolina, the state legislature is currently evaluating legislation entitled ‘Level Playing Field/Local Government Competition.’ Last week the North Carolina Ho use passed the bill, and it currently awaits consideration in the Senate. This piece of legislation certainly sounds goal-worthy, an innocuous proposition, but do not let the tit le fool you. This measure, if enacted, will not only fail to level the playing field; it will disc ourage municipal governments fr om addressing deployment in communities where the private sector has failed to meet broadband service needs. In other words, it will be a significant barrier to broadband deployment and may impede local efforts to promote economic development.""
• National Broadband Plan Rec. 8.19: Congress should make clear that state, regional and local governments can build broadband networks.
  • "Local entities typically decide to offer services when no providers exist that meet local needs. These local entities do so only after trying to work with established carriers to meet local needs.141 This experience is similar to how some municipalities responded in the early part of the 20th century when investor-owned electric utilities left rural America in the dark while they electrified more lucrative urban centers. Public and cooperatively owned power utilities were created to fill the void. More than 2,800 public and co-op operators still provide electricity to 27% of Americans today.142 Many of these same rural areas now face similar challenges attracting private investment to connect civic institutions, businesses and residences to high-speed data networks. In some areas, local officials have decided that publicly-owned communications services are the best way to meet their residents’ needs (see Box 8-5).

    Municipal broadband has risks. Municipally financed service may discourage investment by private companies. Before embarking on any type of broadband buildout, whether wired or wireless, towns and cities should try to attract private sector broadband investment. But in the absence of that investment, they should have the right to move forward and build networks that serve their constituents as they deem appropriate.

• FTTH Council Comments to FCC on Muncipal FTTH Deployment and the National Broadband Plan
• Deployment of Advanced Telecommunications Capability: Second Report, ¶ 181 Best Practices (FCC August 2000) PDF (See Section 706)
  • 171. In addition to the geographic area case studies, we have also conducted, in conjunction with the Federal-State Joint Conference on Advanced Services, a review of community-based deployment efforts to identify best practices which have led to increased access to advanced telecommunications capability. This information has been developed through the series of hearings and site visits sponsored by the Joint Conference, the development of the database on project characteristics and literature review. The field hearings, site visits, and the Joint Conference’s growing database of community deployment efforts,220 have provided important insights into the kinds of efforts that can successfully bring advanced services to a diverse range of communities. This section outlines some of these successful strategies.....
  • Public Investment
  • 181. Direct public investment in desired infrastructure has also been used. There are many instances where a municipality, usually one that already provides another utility service like cable or electricity, builds its own high-speed telecommunications facilities and directly serves customers. In other instances, states have invested in substantial fiber networks to schools or other customers.
    182. Hawarden, Iowa took this approach. The City of Hawarden operated a successful electric and cable utility. Unhappy with the telecommunications service options available to them, the City decided to build its own advanced telecommunications facilities. They have now built a hybrid fiber coaxial cable network throughout the town. Businesses in the community that previously feared being left behind in a digital age, no longer fear being forced to relocate to have access to the modern communications they need. 229 In Orange City, Iowa the town government formed a partnership with its local telephone companies and is building a wireless system that is bringing high-speed Internet to its citizens. The case studies of both Waltham, Massachusetts and the Muscatine, Iowa illustrate the strong role public investment has played in those communities
• FCC, CONNECTED & ON THE GO, BROADBAND GOES WIRELESS, REPORT BY THE WIRELESS BROADBAND ACCESS TASK FORCE p 32 (2005) (“FCC Report”) PDF
  • P. 32 “community networks can act as a low-cost alternative where access to cable modem or DSL service is either unavailable or too expensive.”
  • p 33 “Ensuring that all citizens have access to broadband services is of increasing importance to local governments.”

Debating Municipal Broadband with Christopher Mitchell June 19, 2008

Community Fiber Networks Are Faster, Cheaper Than Incumbents

Killer Applications: The use of VoIP has been described as a killer application for Muni Wifi. [Aaron Kaplan, Funkfeuer Network presented at NAF (Feb. 6 2008)] It could present a compelling alternative to over priced mobile telephone service with the use of such things as Skype Wifi phones.

States (this chart is out of date)

Municipalities are under the authority of state governments. Therefore, state governments can say whether or not it is permissible for a municipality to offer broadband services. This is true even though the Telecommunications Act of 1996, 47 USC 253(a), stated that no state could prohibit "any entity" from offering telecommunications service. The Supreme Court in Missouri Municipal League v. Nixon (SCt 2003) upheld that a municipality is not an "any entity" and that a state could limit the municipalities authority.

• Some States Dictate Conditions For Municipal Networks, NJ Telecom Update Aug 25
• D-Day for Municipals, Broadband Reports Oct 2003

A plethora of states have passed laws restricting, conditioning, or prohibiting municipalies from offering broadband services. Some of these laws constitute nothing more than "don't stick your finger in your eye." These are requirements that states do due diligence, find out what the demand for broadband is and find out what service providers currently offer service in their market. Other states out right ban municipal action. And then there is the truly wierd Pennsylvania law which gives Verizon the right to veto any municipality, except Philadelphia, from offering broadband. Jim Baller points out that in the year 2005, there was a backlash against these laws; of the 14 legislative proposals introduced in 2005 to place barriers in the way of municipal broadband, 13 failed.

Baller Herbst Law Group: Status of State Barriers Proposed in 2005 and 2006 >

There is an important twist to these municipal broadband laws. Many of these laws prohibit the offering of "telecommunications service." However, as demonstrated in the Supreme Court case BrandX, broadband Internet services are information services, not telecommunications service. Thus, a law that prohibts telecommunications service would not block the offering of broadband Internet services by a municipality.

State	Law	Service	Restriction	Networks
Alabama				Scottsboro (c) Sylaugua (f)
Arkansas	Prohibited	basic local exchange service	Exchange service prohibited. Facilities may be provided after hearing.	Paragould (c)
Arizona				Chandler (w) Phoenix (w) Tempe (w)
California				Alameda(f) Anaheim (w) Cerritos Cupertino (w) Fullerton (w) Galt Hermosa Beach (w) Loma Linda (f) Lompoc (w) Long Beach (w) Palo Alto (f) Sacramento San Francisco (w) San Manteo (w) Santa Clara (w) Sunnyvale (w)
Colorado	Regulated	Cable, Telecom and advanced services	Referendum required before entrance.	Denver
Connecticut
District of Columbia				Broadband Bridge (CN)
Florida	Regulated	Communications service	Referendum, hearings, and business plan required before entrance Required annual hearing to report on Muni's progress towards objectives.	Gainsville (f) Lake County (f) Orlando (w) Miami Beach (w) Quincy (f) St. Cloud (w)
Georgia				Adel (w) Atlanta (w) Dalton (f) Ellaville Houston County (w)
Hawaii				Honolulu
Illinois			Referendum required??	Aurora (w)
Indiana				Auburn (f) Fort Wayne (w) Scottsburg (w)
Iowa	Regulated	Local Exchange Service	Referendum required before entrance; rules against subsidization	Cedar Falls (f) Harlan (c) Sanborn Spenser (f)
Kansas				Western (w) Wheatland Electric Cooperative
Kentucky				Glasgow (c) Owensboro (w)
Louisiana	Regulated	Cable, Telecom, or Advanced Services	Referendum required before entrance	Lafayette (f) New Orleans (w) Vivian (w)
New Mexico				Rio Ranch (w)
Maine	Regulated
Maryland				Allegany County (w) Caroline County Talbot County Washington County
Massachusetts				Brookline
Michigan	Regulated	Telecommunications services	Must solicit competitive private sector bids before entrance	Grand Haven (w) Grand Rapids
Minnesota	Regulated	Telephone exchange	Referendum required before entrance	Buffalo (w) Chaska (w) Minneapolis (w) Morehead Windom (f)
Missouri	Prohibited	Telecom facilities or service (Internet type services explicitly permitted)		Carthage Nevada (w) North Kansas (f) Springfield
Nebraska	Partial Prohibition	Broadband, telecom, internet services	Public power utilities may offer the service; no other public entity may. Municipalities may offer dark fiber.
New Mexico				Sandoval County (w) Rio Rancho (w)
New York				New York City Wireless (w)
Nevada	Prohibited	Telecom Service	Prohibition is based on size; Wholesale only
Ohio	Regulated			Akron (w) Cincinnati (w) Cleveland Cuyahoga Falls (w) Dalton (f) Dublin (w) Lebanon (HFC)
Oklahoma				Sallisaw (f)
Oregon				Ashland (f) Portland (w) The Dalles (f)
Pennsylvania	Restricted		Incumbent service provider has right of first refusal	Flinton Kutztown (f) Philadelphia (w) Pittsburgh
South Carolina	Regulated	Telecom Service	No subsidies; cost accounting restrictions	Charleston Columbia Camden
South Dakota				City of Timber Lake
Tennessee	Regulated	Cable, video, telecom, or Internet services	Office of Comptroller must prepare a report before entry	Jackson (f)
Texas	Regulated			Addison (w) Austin (w) Burleson (w) Corpus Christi (w) Farmers Branch (w) Granbury (w) Houston (w) Linden (w) Plano (w) South Lake (w)
Utah	Restricted	Cable or telecom services	Retail offering prohibited. May do it wholesale. Hold hearing, conduct feasibility study, have legislative body adopt the feasibility study before entry	iProvo (f) Spanish Fork UTOPIA (f)
Vermont				Island Pond (w) Montpelier (w)
Virginia	Regulated	Telecom Service	Must acquire certificate, have open facilities, and comply with accounting rules	Alexandria (w) Arlington (w) Bristol (f) Dickenson (w) Manassas (bpl)
Washington	Restricted	Telecom services	Provide wholesale only	Benton County (w) Chelan (f) Clallam (f) Douglas (f) Grant (f) Mason Counties (f) Pasco (w) Tacoma (f)
West Virginia
Wisconsin	Regulated	Cable, Telecom, or Broadband services	Hold a hearing with a financial report, or referendum, or survey finds no service providers, or offers only facilities - and uses revenue to replay cost	Jackson (w) Madison Milwaukee Reedsburg (f) Waupaca (w)
Wyoming

Key:: Prohibited : Entrance is not allowed :: Restricted : Entrance is only partly allowed :: Regulated : Entrance allowed if conditions are met ::

• West Virginia
• Blacksburg Electronic Village, West Virginia
• Links
  • West Virginia Broadband
  • West Virginia Connectivity Initiative

See Muniwireless.com February 2006 list of US cities and regions Wifi Muni Wifi PDF

• Free Press (good summaries)
• Civitium (Excellent)

Network Neutrality

Some Municipality RFPs have explicitly stated Network Neutrality as a condition. See SF RFP Sec. 2.1 PDF

The Network Operator shall promote the open and interconnected nature of the public Internet by operating the Network in a neutral manner that ensures consumers are entitled to:
• Run applications and use services of their choice, subject to the needs of law
enforcement
• Access the lawful Internet content of their choice
• Connect their choice of legal devices that do not harm the network
• Competition among network providers, application and service providers, and content providers.

Community Networks

Similar to municipal networks, these are local networks that are organized by the grassroots local communities instead of by the municipalities and local governments. Some of this movement emphasizes on ad hoc mesh networks.

• International Summit for Community Wireless Networks 2008
• New America Foundation Open Network Project: Mesh Networks

Papers

• Municipal Networks Contribute to Increased Broadband Coverage, OECD (Nov. 25 2015)