Governments Must Remove Barriers to Private Broadband Deployment

TechFreedom and the International Center for Law & Economics (ICLE) have proposed a “third way” on muni broadband: refocusing government at all levels on making private broadband deployment easier. In reply comments on petitions filed in July by Chattanooga, TN and Wilson, NC asking the FCC to preempt state laws restricting the expansion of their municipal broadband networks, the two think tanks explained that these and other state laws are not, in fact, “bans” on muni broadband. Moreover, the FCC lacks the legal authority to preempt such laws regardless of how they are crafted.

Rather, the TF-ICLE reply comments call on the FCC to issue a Notice of Inquiry on ways that Congress could craft legislation to promote the laudable goal of Section 706: “encourag[ing] the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.”

“Referring to the laws in TN and NC as ‘bans’ is misleading and has sparked a false media narrative,” said Berin Szoka, President of TechFreedom. The laws specifically authorize municipal broadband, but impose reasonable fiscal and procedural safeguards to assure that the taxpayers, who are ultimately on the hook if the projects fail, retain control. “Municipalities, as creatures of the states, may do only those things that states authorize. States are well within their historical roles when they bar municipalities from granting special competitive advantage over private networks or protect taxpayers from the risk of expanding service beyond municipal borders.”

“If government is ever to enter the broadband marketplace, this should be a last resort, done only in cases where private providers will not provide broadband competition,” said Geoffrey Manne, Executive Director of ICLE. “Government-run broadband, which lacks a profit-driven feedback loop, is unlikely to serve consumers better in the long-run than private provision of broadband. Even if the FCC had the authority to overturn state laws, it would be a double-edged sword, which could be used to ban government-owned networks in the future.”

“More could be done to promote deployment without distorting the marketplace, or burdening consumers with failed systems,” continued Szoka. “We urge municipalities and states to cut red tape that makes private broadband deployment difficult. If they have taxpayer dollars available to invest, they should focus them on building broadband-ready smart infrastructure like Dig Once conduits under streets and fiber-ready poles – rather than attempting to displace the private providers that would, we believe, in the vast majority of cases, eagerly deploy faster broadband service if it were easier and cheaper to do so.”

“If Congress is to give the FCC preemption authority in this area that it currently lacks,” concluded Szoka, “that authority should be part of a larger package of reforms that lower regulatory barriers to private deployment and encourage smart infrastructure. And preemption would be appropriate only when states truly bar municipalities from building networks even after municipalities have cut red tape and at least announced smart infrastructure upgrades. Only then will we know that the market has failed.”

Szoka and Manne are available for comment at

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