Legislation introduced Tuesday by five Senate Democrats and by one independent senator would amend the 1996 Telecommunications Act to prohibit state, local and tribal governments from enacting laws that prevent or limit cities and other municipal entities from offering high-speed broadband service. Sponsored by Senators Cory Booker (D-NJ), Ed Markey (D-MA), Claire McCaskill (D-MO), Ron Wyden (D-OR), Richard Bluementhal (D-CT) and Angus King (I-ME), the Community Broadband Act of 2017 mirrors a similar measure that was introduced last fall by Rep. Anna Eshoo (D-CA) but did not advance to a floor vote by the end of the previous Congressional session. The bill also responds to a ruling which was handed down in August by the Sixth Circuit Court of Appeals and which reversed the FCC’s February 2015 decision to preempt state laws in Tennessee and North Carolina that restricted the expansion of municipal broadband networks in those states.
In the case at hand which involved limits on the expansion of existing municipal broadband networks, the FCC premised its authority to preempt state law upon Section 706 of the Telecommunications Act, which directs the FCC to ensure the reasonable and timely deployment of advanced telecommunications capability. Although the FCC acknowledged that it lacked authority to preempt state law that restricts deployment of municipal broadband networks altogether, the court held that the FCC had nevertheless exceeded its jurisdiction as “this preemption by the FCC of the allocation of power between a state and its subdivisions requires at least a clear statement in the authorizing federal legislation.”
The Community Broadband Act seeks to address the court’s concerns by providing the FCC with the legal basis to preempt state and local laws that restrict deployment and expansion of municipal broadband networks. As specified in the bill, state, local and tribal laws may not inhibit “any public provider from providing telecommunications services or advanced telecommunications capability or services to any person or any public or private entity.” Proponents of municipal or public-private broadband networks will be required to post notice of their intended networks, describe proposed coverage and service areas, provide public and private sector entities with opportunities for comment, and offer telecommunications carriers and other private sector entities with the opportunity to bid on the proposed service. In the event a municipal network fails, no federal funding will be provided “specifically to assist” a municipal entity in preserving or reviving its network unless the network in question is located in a federal disaster area. Asserting that “too many communities lack reliable access” to broadband network facilities, Booker told reporters that the bill will help remove barriers to broadband network deployment “by giving cities the flexibility they need to meet the needs of their residents.”