Last year, while most of us were focused on the FCC’s Open Internet Order to protect net neutrality, the FCC quietly did one more thing: it voted to override certain state regulations that inhibit the development and expansion of community broadband projects. The net neutrality rules have since been upheld, but last week a federal appeals court rejected FCC’s separate effort to preempt state law.
The FCC’s goals were laudable. Municipalities and local communities have been experimenting with ways to foster alternatives to big broadband providers like Comcast and Time/Warner. Done right, community fiber experiments have the potential to create options that empower Internet subscribers and make Internet access more affordable. For example, Chattanooga, Tennessee, is home to one of the nation’s least expensive, most robust municipally-owned broadband networks. The city decided to build a high-speed network initially to meet the needs of the city’s electric company. Then, the local government learned that the cable companies would not be upgrading their Internet service fast enough to meet the city's needs. So the electric utility also became an ISP, and the residents of Chattanooga now have access to a gigabit (1,000 megabits) per second Internet connection. That’s far ahead of the average US connection speed, which typically clocks in at 9.8 megabits per second.
But 19 states have laws designed to inhibit experiments like these, which is why the FCC decided to take action, arguing that its mandate to promote broadband competition gave it the authority to override state laws inhibiting community broadband. The court disagreed, finding that the FCC had overstepped its legal authority to regulate.
While the communities that looked to the FCC for help are understandably disappointed, the ruling should offer some reassurance for those who worry about FCC overreach. Here, as with net neutrality rulings prior to the latest one, we see that the courts can and will rein in the FCC if it goes beyond its mandate.
But there are other lessons to be learned from the decision. One is that we cannot rely on the FCC alone to promote high speed Internet access. If a community wants the chance to take control of its Internet options, it must organize the political will to make it happen – including the will to challenge state regulations that stand in the way. Those regulations were doubtless passed to protect incumbent Internet access providers, but we have seen that a determined public can fight those interests and win. This time, the effort must begin at home. Here are a few ideas:
Light Up the Dark Fiber, Foster Competiiton
In most U.S. cities there is only one option for high-speed broadband access. And this lack of competition means that users can’t vote with their feet when monopoly providers like Comcast or Verizon discriminate among Internet users in harmful ways. On the flipside, a lack of competition leaves these large Internet providers with little incentive to offer better service.
It doesn't have to be that way. Right now, 89 U.S. cities provide residents with high-speed home Internet, but dozens of additional cities across the country have the infrastructure, such as dark fiber, to either offer high-speed broadband Internet to residents or lease out the fiber to new Internet access providers to bring more competition to the marketplace (the option we prefer).
“Dark fiber” refers to unused fiber optic lines already laid in cities around the country, intended to provide high speed, affordable Internet access to residents. In San Francisco, for example, more than 110 miles of fiber optic cable run under the city. Only a fraction of that fiber network is being used.
And San Francisco isn’t alone. Cities across the country have invested in laying fiber to connect nonprofits, schools, and government offices with high-speed Internet. That fiber can be used by Internet service startups to help deliver service to residents, reducing the expensive initial investment it takes to enter this market.
So the infrastructure to provide municipal alternatives is there in many places—we just need the will and savvy to make it a reality that works.
"Dig Once"—A No Brainer
Building the infrastructure for high-speed internet is expensive. One big expense is tearing up the streets to build out an underground network. But cities regularly have to tear up streets for all kinds of reasons, such as upgrading sewer lines. They should take advantage of this work to create a network of conduits, and then let any company that wants to route their cables through that network, cutting the cost of broadband deployment.
Challenge Artificial Political and Legal Barriers
In addition to state regulations, many cities have created their own unnecessary barriers to their efforts to light up dark fiber or extend existing networks. Take Washington, D.C., where the city’s fiber is bound up in a non-compete contract with Comcast, keeping the network from serving businesses and residents. If that's the case in your town, you should demand better from your representatives. In addition, when there's a local meeting to consider new construction, demand that they include a plan for installing conduit.
These are just a few ideas; you can find more here, along with a wealth of resources. It’s going to take a constellation of solutions to keep our Internet open, but we don't need to wait on regulators and legislators in D.C. This is one area where we can all be leaders. We can organize locally and tell our elected officials to invest in protecting our open Internet.