FCC Approves Net Neutrality and Preempts State Muni-Broadband Restrictions

FCC’s Historic Day: Net Neutrality and Muni-Broadband Protection

As expected, on February 26, 2015 the Federal Communications Commission (FCC) voted 3-2 in favor of adopting net neutrality rules under its Title II authority.

For a detailed background on the issue check out our prior post Net Neutrality Timeline: How We Got Here and my discussion of the vote with Free Press’ Craig Aaron on February 25 (Featured Segment: Free Press’ Craig Aaron on Net Neutrality) on Cyber Law and Business Report.

Net Neutrality Vote

clyburnIn their comments leading up to the vote, FCC Commissioners gave tribute to the nearly 4 million Americans who submitted comments on the proposed rule, none more eloquently than Commissioner Mignon Clyburn (left).

James Madison gave life to the First Amendment in a scant 45 words, which are fundamental to the spirit of this great nation. Almost two centuries later, Justice William Brennan would write in the historic 1964 New York Times v. Sullivan decision that “debate on public issues. . . [should be] . . . uninhibited, robust and wide-open.”  I believe President Madison and Justice Brennan would be particularly proud of the rigorous, robust and unfettered debate that has led us to this historic moment

And what a moment it is.  I believe the Framers would be pleased to see these principles embodied in a platform that has become such an important part of our lives. I also believe that they never envisioned a government that would include the input and leadership of women, people of color, and immigrants, or that there would be such an open process that would enable more than four million citizens to have a direct conversation with their government. They would be extremely amazed, I venture to say, because even we are amazed.

Chairman Wheeler concluded the discussion to reject the notion that the order was a takeover of the Internet as opponents claim.

Muni-Broadband Preemption

gigcityAs we explained previously in President Obama Speech Today to Address Improving US Broadband, municipal broadband efforts have created needed competition and helped cities like Chattanooga, Tennessee become the city with the fastest internet speed in the United States.  Cable companies, however, have fought back and won restrictions on municipal broadband in 20 states and they have their sights sets on yet another.

Prior to the vote on net neutrality, the FCC granted Chattanooga’s and Wilson, North Carolina’s municipalities request for relief from these restrictions.

Communities across the nation, including these two petitioners, understand that access to fast, fair, and open broadband networks is key to their economic future – and the future of their citizens. But as the Commission’s 2015 Broadband Progress Report makes clear, broadband deployment – especially in rural areas – is not occurring broadly or quickly enough to meet the increasing bandwidth demands of consumers.

Accordingly, many communities across the nation are taking action. They have concluded that existing broadband offerings are not meeting their needs, and the only solution is to become directly involved in broadband deployment. . . .

These efforts are reaping dividends, enabling new economic opportunities and improvements in education, health care, and public safety for the communities that take these steps, a pattern exemplified by the communities of Chattanooga and Wilson. In Chattanooga, large companies like Amazon and Volkswagen have invested in new facilities, citing the city’s world-leading network as a reason why. And Chattanooga is emerging as an incubator for tech start-ups. In Wilson, the area’s top employers all rely on the community broadband network, new companies have located in Wilson because of its network, and residents and businesses in five surrounding counties are all pleading for access to this gigabit-speed connectivity.

However, as their petitions make clear, the leaders of Chattanooga and Wilson are being prevented from expanding their broadband networks to surrounding areas and making their own decisions about their broadband future. In Tennessee and North Carolina, and in 17 other states, community broadband efforts have been blocked or severely curtailed by restrictive state laws – laws often passed due to heavy lobbying support by incumbent broadband providers.

. . . The Commission respects the important role of state governments in our federal system, and we do not take the step of preempting state laws lightly. But it is a well-established principle that state laws that directly conflict with federal laws and policy may be subject to preemption in appropriate circumstances.

Congress instructed the FCC to encourage the expansion of broadband throughout the nation. Consistent with this statutory mandate, the Commission acts today to preempt two restrictive state laws hampering investment and deployment of broadband networks in areas where consumers would benefit from greater levels of broadband service.