While net neutrality justifiably received a ton of press attention last week, we were quick to point out that the FCC’s other major decision — to start attacking protectionist state broadband laws — may just be a bigger deal. These twenty or so laws, as we’ve explored in detail, are written and lobbied for by incumbent ISPs and prohibit towns and cities from deciding for themselves what they should be able to do regarding local telecom infrastructure. If you realize that neutrality violations are just a symptom of a lack of competition, the FCC’s decision to start dismantling the onerous parts of these laws strikes much deeper at the root of the problem.
Make no mistake: these laws are the worst sort of protectionism. And despite ISP attempts to make this a partisan issue, most municipal broadband deployments are being approved by Republican voters in Conservative areas. Similarly, Democrats and Republicans alike realize that letting AT&T or Comcast write a law that tells you what you can or can’t do (and in some cases even eliminates eminent domain rights) only benefits AT&T and Comcast. Municipal broadband is an organic, community reaction to the telecom market failure they’re “enjoying” on a daily basis.
That’s why it’s been amusing to see Martha Blackburn rushing to the defense of the ISPs and these bills, breathlessly trying to argue that she’s just terribly, terribly concerned about states’ rights. Almost immediately after the FCC’s vote to limit the reach of such laws in Tennessee and North Carolina, Blackburn and Senator Thom Tillis introduced the “States’ Rights Municipal Broadband Act of 2015 (pdf),” which would amend the Telecommunications Act to strip back FCC authority over states when it comes to timely broadband deployment.
Both Blackburn’s and Tillis’ states have passed laws that have prevented municipal broadband deployments from expanding and encroaching on the territories of companies like AT&T, CenturyLink, Time Warner Cable and Comcast. EPB Broadband (in Tennessee) and Greenlight (in North Carolina) petitioned the FCC for help in removing state-level barriers to deployment after a decade of FCC apathy to the issue. According to a statement on Blackburn’s website, she’s not blindly protecting her state’s broadband duopoly, she’s protecting locals from the FCC’s vile assault on their freedom:
“I’m pleased to be working with Senator Tillis on this important issue. As former state legislators, we strongly believe in States’ rights and will fight the FCC’s liberal agenda. Chairman Wheeler’s regulatory appetite appears to know no bounds and is seeping dangerously into the lives of Americans. It is time for Congress to assert itself and protect States once again from unelected Washington bureaucrats.”
Just so we’re clear: letting AT&T and Comcast write awful state law that strips away “states’ rights” to the sole benefit of their monopoly revenues is perfectly fine. But the FCC using its legal authority to restore those same rights — is a frontal assault on states’ rights? Blackburn and Tillis are actually trying to dress up duopoly protectionism as some form of noble ethos in a particularly blistering wave of nonsensical hubris.
Blackburn’s effort is unlikely to go anywhere, in part because even the ISPs that write these laws don’t want to be publicly associated with them. You’ll notice that while many large ISPs felt free to complain about net neutrality rules, most of them remained mute on the FCC’s municipal broadband decision — largely because buying protectionist state law is nearly impossible to coherently defend (as Tillis and Blackburn so deftly illustrate). Both Comcast and AT&T have mergers awaiting FCC review, so any full-throated support for keeping U.S. broadband uncompetitive will have to remain the purview of disingenuous intermediaries.