FCC votes 3-2 to override state bans of municipal broadband

The Federal Communications Commission on Thursday morning voted to push aside laws in two states that restrict municipalities from building out their local high speed broadband networks.

In a 3-2 vote, the FCC granted petitions from Chattanooga, North Carolina and Wilson, North Carolina that asked the agency to invoke its powers under Section 706 of the Telecommunications Act to “remove barriers” to infrastructure access.

The upshot is that the FCC has invoked federal power to pre-empt state laws that, according to advocates for the municipalities, were passed at the behest of big telecom companies.

While Thursday’s vote applies only to Tennessee or North Carolina, it will provide legal ammunition for towns in more than twenty other states that confront laws banning or restricting municipal-run broadband services.

The Democratic Commissioners who voted in favor of pre-emption used their platform at the hearing to call attention to towns across the country that lack basic broadband access because private companies won’t build it.

Commissioner Mignon Clyburn observed that millions of Americans are “trapped in digital darkness,” and can’t access high-speed internet service that would let them access telework and school services, especially during snow days.

The two Republican Commissioners questioned the legal authority of the FCC, under Section 706, to override the state laws, and raised concern about its effect on the private market.

“It’s not the government’s role to offer services instead of or in competition with private actors,” said Commissioner Michael O’Reilly, who likened town services to nationalization in Russia, Venezuela and Cuba.

Chairman Tom Wheeler, however, said the state laws were “thickets of red tape to limit competition,” and said the agency was cutting away that red tape consistent with Congress’s instructions to ensure a competitive broadband market. He also suggested that the Republicans were acting hypocritically by claiming to be in favor of broadband, while also throwing their lot in with those who want to restrict access to it.

Wheeler also called attention to Tennessee residents in the audience who lived within miles of Chattanooga’s super-fast gigabyte fiber network, but are stuck with slow internet service because state laws won’t let the city utility sell its service to them.

The municipal broadband issue is one of two major issues that the FCC is voting on today. Later on Thursday, the Commission will vote on the hot button net neutrality issue.