FCC Memorandum Opinion and Order _ Petition for Preemption (PDF)
Category: Federal & State Developments
Baller Herbst Stokes & Lide Statement on the FCC’s Order Removing Barriers to Community Broadband Initiatives in Tennessee and North Carolina
BHSL Press Release_3-12-2015 (PDF)
For Immediate Release
March 12, 2015
Contact: Jim Baller
202-441-3663
Jim@Baller.com
Baller Herbst Stokes & Lide Statement on the Federal Communications Commission’s Order Removing Barriers to Community Broadband Initiatives in Tennessee and North Carolina.
On February 26, 2015, the FCC voted to grant the petitions filed by the City of Wilson, North Carolina (Wilson) and the Electric Power Board of Chattanooga, Tennessee (EPB) to remove certain State laws that impose barriers to the ability of local government entities to invest in high-capacity broadband Internet networks and promote competition in their communities. Today, the Commission released a 116-page written order that implements the Commission’s decision and explains its rationale.
Washington (March 12, 2015) – Baller Herbst Stokes & Lide, lead counsel to Wilson and EPB in their proceedings before the FCC, is grateful to the Commission for its thoughtful decision. We also applaud Wilson and EPB for their visionary and courageous efforts on behalf of their communities. This decision will enable them to bring broadband Internet access at gigabit speeds to neighboring areas in which businesses and residents are clamoring for their advanced communications services and capabilities.
In the attached Order, the Commission concluded that: “Tennessee and North Carolina laws are barriers to broadband infrastructure investment and that preemption will promote competition in the telecommunications market by removing statutory barriers to such competition. In other words, we find that removal of such barriers would likely result in more overall broadband investment and competition. … To put it plainly, the Commission has concluded that preemption of these restrictions will expand broadband investment and deployment, increase competition, and serve the public interest, as Section 706 intended.”
Jim Baller, senior principal of Baller Herbst Stokes & Lide, stated:
“The Commission’s order not only addresses the legal issues thoroughly and effectively, but it also draws upon an extensive record to make a compelling case for local Internet choice.
“We hope that the order will encourage States not to adopt new protectionist measures, and to remove existing ones, that impair the ability of their communities to survive and thrive in the emerging knowledge-based global economy. Such laws are bad for the communities involved, bad for the private sector, particularly high tech companies, and bad for America’s global competitiveness.”
Baller Herbst Stokes & Lide Statement on the FCC’s Decision to Remove North Carolina and Tennessee Barriers to Community Broadband Initiatives
BHSL FCC Wilson_Chattanooga Press Release 2-26-15
For Immediate Release
February 26, 2015
Contact: Jim Baller
202-441-3663
Jim@Baller.com
Baller Herbst Stokes & Lide Statement on the Federal Communications Commission’s Decision to Remove North Carolina and Tennessee Barriers to Community Broadband Initiatives
On July 24, 2014, The Electric Power Board of Chattanooga, Tennessee (EPB), and the City of Wilson, North Carolina (Wilson), petitioned the Federal Communications Commission to remove certain State laws that impose barriers to broadband investment and competition. Today, the FCC granted the petitions.
Washington (February 26, 2015) – Baller Herbst Stokes & Lide, lead counsel to Wilson and EPB in their proceedings before the FCC, applauds the Commission for removing the protectionist provisions of North Carolina and Tennessee law that have prevented Wilson and EPB from investing in advanced communications capabilities and bringing competition to areas outside their current broadband Internet access service areas, including unserved and underserved areas.
As FCC Chairman Thomas Wheeler stated at today’s hearing, “You can’t say you’re for following Congress’s explicit instructions to remove barriers to broadband investment and then turn around endorse restrictions on such investments. You can’t say you’re for competition and then turn around and deny local governments the ability to provide competitive services. As they say in North Carolina, ‘That dog don’t hunt.’”
Section 706 of the Telecommunications Act of 1996 requires the FCC to ensure that broadband is being deployed on a reasonable and timely basis to all Americans. If the FCC determines that advanced communications capabilities are not being deployed to all Americans in a reasonable and timely manner, Section 706 requires the FCC to “take immediate action to accelerate deployment…by removing barriers to infrastructure investment and by promoting competition.” In removing the provisions of NC and TN law that prevented Wilson and EPB from expanding their networks, the FCC is acting in accordance with the dictates of Section 706 and is paving the way for many businesses and residents of North Carolina and Tennessee to gain access to Wilson’s and EPB’s state-of-the-art fiber networks and services.
“This is an important moment for communities in North Carolina, Tennessee, and other states that have barriers to local investments in advanced communications networks,” said Jim Baller, senior principal of Baller Herbst Stokes & Lide. “Not only has the Commission confirmed that it has authority to remove such barriers, but it has also compiled a massive record documenting the critical role that local Internet choice can play in fostering strong, vibrant communities and in ensuring that the United States will remain a leading nation in the emerging knowledge-based global economy.”
“Communities across the Nation have recognized that advanced communications networks can drive and support parallel progress in just about every area of traditional local responsibility, including economic development, education, public safety, health care, transportation, government service, environmental protection, and much more.
“That’s why so many communities are now seeking prompt, affordable access to advanced communications capabilities, by working with willing incumbent carriers, entering into public-private partnerships with new entrants, establishing their own networks, or developing innovative new strategies that may work for them.
“Barriers to local Internet choice, such as the North Carolina and Tennessee laws that the Commission has removed today, are bad for America’s communities, bad for the private sector, particularly high-technology companies, and bad for America’s global competitiveness.”
State Developments 2015
Joint Opposition to Missouri SB266, submitted February 18, 2015
State Developments 2014
- Indiana SB 118 (negative) (problematic language not enacted)
- Kansas SB 304 (negative) (not reported out of committee)
- Tennessee HB 2242 / SB 2140 (favorable) (failed)
- Tennessee HB 2364 / SB 2428 (favorable) (failed)
- Tennessee HB 2482 / SB 2562 (favorable) (failed)
- Utah HB 60 (negative) (failed)
- Utah SB 190 (negative) (failed)
State Developments 2013
State Developments 2012
State Developments 2011
- Arkansas: HB 2033 (negative) (passed)
- New Hampshire: HB 389 (positive) (did not pass)
- North Carolina: HB 129 (negative) (passed)
- South Carolina: H.3508 (negative) (did not pass)
- Tennessee: HB 2076/SB 1847 (positive) (did not pass)
- Washington: HB 1711(positive) (did not pass)
- Wisconsin: Initial Omnibus Budget Motion (negative)
State Developments 2010
State Developments 2009
State Developments 2007-08
- Connecticut HB 6780 (positive)
- Illinois Act 95-0684, Section 35 (positive)(enacted)
- Missouri HB 801 (positive)(enacted)(No ban on “Internet type services”)
- New Jersey P.L. 2007, c.191 (mixed)(passed)
- North Carolina HB 1587 (2007)(negative) (not passed)
Examples of opposition to North Carolina HB 1587:
- AARP
- Alcatel-Lucent
- City of Chapel Hill
- Town of Davidson
- EDUCAUSE
- City of Fayetteville
- City of Greensboro
- Hitachi
- City of Raleigh
- City of Wilson
- FTTH Council
- Intel
- Mainstream Fiber Networks
- NC Counties Association
- NC Justice Center
- NC League of Municipalities
- NC PIRG
- SEATOA
- Telecommunications Industry Association
- Tropos
- Pennsylvania HB 327 (positive)(not enacted)
- Rhode Island H5839 (positive)(not enacted)
- Vermont HB 248 (positive)(enacted)
- Washington SB 6102 (positive)(not enacted in 2007, reintroduced in 2008)
- West Virginia (positive) (vetoed)
- Wyoming (restrictions limited to exclusive contracts)
Federal Developments 2007-2008
- Lautenberg-Smith: S.1853, “Community Broadband Act of 2007”
- Sen. Lautenberg floor statement
- Sen. Lautenberg press release
- Congressional Budget Office Cost Estimate for S.1853
- Senate Commerce Committee final report on S.1853
- Boucher-Upton: H.R.3281, “Community Broadband Act of 2007”
- Rep. Rick Boucher floor statement
- Boucher-Upton press release
- Community Broadband Coalition Letter of Support for S.1853 (9-21-07)
- Community Broadband Coalition Letter Support for H.R.3281 (9-21-07)
- Rep. Markey’s Staff Discussion Draft: “Wireless Consumer Protection and
Community Broadband Empowerment Act of 2008”
State Developments 2005-06
Battles Over State Barriers Proposed in 2005 and 2006
Federal Developments 2005-2006
- Rep. Pete Sessions’ Proposed Federal Barrier (H.R.2726)
- Lautenberg-McCain “Community Broadband Act of 2005” (S.1294)
- Lautenberg-McCain Bill Status
- Senator Lautenberg floor statement
- Senator McCain floor statement
- Senators Lautenberg and McCain reiterate support for community broadband
in accepting FirstMile.US award - Response to USTA: Lautenberg-McCain is Constitutional
- Senator Ensign’s Bill: “The Broadband Investment and Consumer Choice Act” (S.1504)
- Senator Ensign’s 3-page summary
- Senator Ensign’s floor statement
- Jim Baller’s response to Senator Ensign’s municipal networks provision
- Lautenberg-McCain “Dear Colleague” letter (February 13, 2006)
- Senator DeMint’s Bill: “The Digital Age Communications Act of 2005” (S.2113)
- First Community Broadband Coalition Letter to 100 Senators, supporting Lautenberg-McCain
- Second Community Broadband Coalition letter to Senate Commerce Committee
supporting the Lautenberg-McCain bill (February 13, 2006) - FTTH Council statement to Senate Commerce Committee supporting
the Lautenberg-McCain bill (February 14, 2006) - Consumers Union/Consumers Federation of America letter to Senate Commerce
Committee supporting the Lautenberg-McCain bill (February 2006) - Texas communities letter to Senate Commerce Committee supporting the
Lautenberg-McCain bill (February 13, 2006) - Barton-Rush-Upton-Pickering bill, “The Communications Opportunity, Promotion,
and Enhancement Act of 2006,” HR.5252 - Status of Barton-Rush-Upton-Pickering bill (HR.5252)
- Stevens Bill: “The Advanced Telecommunications and Opportunites Reform Act”
or “The Communications Act of 2006” (8-4-06) (HR.5252RS) (Municipal Broadband begins at 184) - Senate Commerce Committee Report on HR 5252 (Municipal Broadband at 32-33)