States that restrict municipalities from offering Internet service to residents could see their laws overturned if they based the bills on a model offered by a conservative legislative group.
Many of the provisions in the model legislation promoted by the American Legislative Exchange Council (ALEC) were incorporated into a North Carolina law that was knocked down by the Federal Communications Commission in February, according to a Center for Public Integrity analysis.
ALEC, a self-described free-market think tank made up of mostly Republican state lawmakers and funded by corporations and trade groups, created a model municipal broadband law in 2002 that makes it difficult, if not impossible, for cities to build their own networks. The goal of the legislation is to keep cities from what the group views as unfairly competing with large Internet providers such as Comcast Corp., Time Warner Cable Inc., Verizon Communications Inc. and AT&T Inc. All four companies have donated to ALEC and some executives have served in leadership positions on committees and boards.
About 20 states have passed laws that either outright ban cities from building networks or places requirements that make it almost financially impossible to develop one. Many of the laws have provisions that are similar to ALEC’s model bill.
Now they risk the same fate as North Carolina. In February, the FCC voted to preempt that state’s law and another in Tennessee that restrict cities from building or expanding broadband networks. The Tennessee attorney general is suing the FCC to overturn the decision.
In its order, the FCC cited numerous provisions in North Carolina’s law that violate the Telecommunications Act of 1996. Six of those provisions are nearly identical to ALEC’s model legislation, according to a Center for Public Integrity analysis of the FCC order.
By citing those six provisions, the FCC has by extension struck down much of ALEC’s model law, said Jim Baller, an attorney who represented Chattanooga, Tennessee, and Wilson, North Carolina, when they asked the FCC to preempt their states’ broadband laws.
“Because the North Carolina law uses similar language to that found in the ALEC model legislation, it would seem to follow that any other state that has relied heavily on the ALEC model has also effectively banned municipal broadband investments,” Baller wrote in an email.
ALEC has cited the North Carolina law as a good prototype for other states.
Bartlett Cleland, an ALEC member and policy counsel for the Institute for Policy Innovation, a Texas-based think tank that promotes limited-government and free-market policies, said in an email that the ALEC model legislation doesn’t ban or create obstacles to city-run Internet networks, but gives citizens more say in municipal decisions.
He referred to a provision in the model law that requires a city to hold a referendum on whether it can build a network. Cleland called such requirements “good government, working to include constituents as much as possible in decisions. In the same way, ALEC’s model legislation does the same for municipal broadband – protecting citizens and given them a say in outcomes that effect them.”
The FCC disagreed. It said North Carolina’s law requiring a referendum, along with other related restrictions, “conflict with Congress’s mandate to encourage the deployment of broadband and infrastructure investment. The Commission must, as directed by Congress, take action to remove these barriers.”
Below are the six provisions in North Carolina’s municipal broadband law that are similar to ALEC’s model legislation, and what the FCC had to say about them.