Wheeler Challenged On Muni-Broadband Power

Federal Communications Commission Chairman Tom Wheeler has said he wants to nix laws that prevent cities from building their own broadband networks.

But he might lack the ability to do so -- at least according to Matthew Berry, chief of staff to Republican FCC Commissioner Ajit Pai.

“Does the FCC have the legal authority to preempt state laws regulating municipal broadband?” Berry asked at a speech delivered yesterday at the National Conference of State Legislatures. “The answer to that question is a resounding no.”

He went on criticize FCC officials for failing to follow President Theodore Roosevelt's famous policy of talking softly and carrying a big stick. “Some at the Commission have been speaking loudly even though the agency has a small stick,” he said. “Indeed, it probably has no stick at all. It is time for the Commission to recognize this reality and move on to more productive endeavors.”

Of course, Berry was preaching to the choir: The National Conference of State Legislatures has already gone on record as opposing any FCC attempt to intervene in muni-broadband laws. In fact, the organization went so far as to threaten to sue the FCC if it enacted rules that would “diminish the duly adopted laws of the impacted states.”

Meanwhile, many consumer advocates say the FCC should do everything possible to encourage municipal broadband, arguing that it offers much-needed alternatives to cable companies and telecoms.

They point out that cities that have built their own networks can offer cheaper -- and faster -- service than the incumbents. The most famous example probably occured in Tennessee, where Chattanooga began rolling out a 1 Gbps network in 2010. That state -- like 19 others -- now limits cities' ability to build their own networks.

Neutrality proponents and advocacy groups say that nixing those laws will go a long way toward making broadband more competitive -- which in itself could advance neutrality principles. After all, the argument goes, telecoms and cable companies likely will be warier of tinkering with traffic when their subscribers can walk away and sign up with a local fiber-to-the-home network.

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