The Community Broadband Vote: FCC Commissioners in their Own Words

Here’s brief excerpts from the statements of the five Federal Communications Commission members during the Feb 26 vote on petitions filed by two municipal broadband providers asking that the Commission preempt provisions of state laws in North Carolina and Tennessee that restrict the abilities of communities to provide broadband service.

FCC Chairman Tom Wheeler: Today, we take an important step to rid … communities of [“state-level red tape”]. Specifically, we act on petitions filed by the leaders of Chattanooga, Tennessee and Wilson, North Carolina asking the FCC to preempt laws enacted by state legislatures that prohibit them from expanding their successful community-owned broadband networks. The issue is simple: these communities want to determine their own path. Their elected local officials want to be able to take action to meet their communities’ needs for high-speed broadband. But the laws at issue today raise barriers to the deployment of and investment in new broadband networks and infrastructure. That is why I support granting these petitions. 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. This Order reflects our continued commitment to the goals of Section 706 and represents a significant step forward in giving local communities a full range of options for meeting their broadband needs. While the direct effect of our decision today is limited to the two states involved, it sends a clear message: communities should be able to determine their own paths to meet their constituents’ needs.

Commissioner Mignon Clyburn: For those in this room and to others live-streaming it may be hard to imagine just how many people lack the capacity to access the Internet. Millions are trapped in digital darkness, robbed of the opportunity to telecommute in the wake of this winter’s weather madness or keep up with classroom studies due to the ever mounting number of snow days and delayed start times. For scores of Americans the choice of one, let alone multiple broadband networks, is a dream deferred and the promise of universal access remains un-kept. Today’s vote seeks to draw a line in the sand once and for all by removing barriers to deployment and fostering competition consistent with the FCC’s core mission and values. What has been regrettably lost in the thunderous debate over whether constructing municipal broadband networks is a good idea or if one system or another is considered a “success,” is the only question that really matters: Are these laws barriers to broadband infrastructure investment and competition? The Tennessee and North Carolina petitions present this compound question to the Commission and today we conclude that the answer is yes.

Commissioner Jessica Rosenworcel: American enterprise and self-sufficiency are the stuff of legend. But when we really thrive is when we find common cause and come together to get things done. For our forebears, this meant everything from holding barn raisings to building bridges to setting up cooperatives to bring electricity to our nation’s farms. But infrastructure challenges like these are not limited to the past. We have communities that face them today—with broadband. Broadband, after all, is more than a technology—it’s a platform for opportunity. In urban areas, rural areas, and everything in between, high-speed service is now necessary to attract and sustain businesses, expand civic services, and secure a viable future. Without it, no community has a fair shot in the digital age…. today we tear down barriers that prevent [Chattanooga, Tennessee and Wilson, North Carolina] from expanding their broadband service and offering more consumers more competitive choice. I am pleased to offer my support.

Commissioner Ajit Pai: In 1999, Tennessee authorized municipal electric systems to provide Internet service within the boundaries of their service areas. The legislation passed the Tennessee General Assembly 96-0 and the Tennessee Senate 32-0. Each body was under the control of the Democratic Party. Tennessee’s Republican Governor then signed the bill into law. Today, however, three unelected officials in Washington, DC, purport to rewrite Tennessee law on a party-line vote. Specifically, this Order attempts to empower Tennessee municipal electric systems to offer broadband service outside of their service areas—authority which those systems have never possessed. The Order doesn’t contest that Tennessee may prohibit municipal electric systems from offering Internet service altogether. Instead, it claims that Tennessee may not condition such authority on electric systems only serving customers within their service areas. In other words, once the people’s elected representatives allow municipalities to offer any Internet service at all, the camel’s nose owns the tent. This decision, along with the decision to preempt a similar North Carolina law, is odd—and unlawful. Judicial precedent makes clear that the FCC simply does not have the power to do this. In taking this step, the FCC usurps fundamental aspects of state sovereignty. And it disrupts the balance of power between the federal government and state governments that lies at the core of our constitutional system of government. Whatever the merits of any particular municipal broadband project—and to be clear, on this question I take no position, deferring to affected voters and elected officials—I do not believe this agency has the power to preempt.

Commissioner O’Rielly: This order highlights the unprecedented lengths that the Commission is willing to go in undermining the free market system, the Federal statute, the U.S. Constitution, and common sense in order to try to dictate when, where, and how broadband is provided in this country. The Commission is just about to vote to re-write the Communications Act to assume vast new regulatory authority over broadband providers in the next item, and here the Commission has the arrogance to try to re-write state laws as well. The order is both legally infirm and bad public policy. I cannot support it.