Net Neutrality is Just the Tip of the Preemption Iceberg

By Angelina Panettieri, Principal Associate for Technology and Communication, National League of Cities

On Thursday, December 14, the Federal Communications Commission (FCC) voted 3-2 to overturn the current network neutrality framework in its Restoring Internet Freedomorder.Thefinalorder,whichreturnsinternetservice toa“TitleI”serviceundertheTelecommunicationsAct,will nolongerrequirethatinternetserviceproviderstreatallweb traffic equally and will allow ISPs to engage in blocking, throttling, and paid prioritization, provided they disclose thoseactivitiestoconsumers.

Thefinalorderalsocontainedaprovisiontopreempt“ utility style”stateandlocalregulationofinternetserviceproviders, along with language indicating the FCC’s intent to more broadly preempt state and local authority as necessary to upholdtheorder’sintent.

This move is the latest in a series by the FCC to limit the power of state and local governments to control broadband infrastructure and service within their jurisdictions. The majority of commissioners indicated during their remarks at themeetingthattheirlong-termintentwastopromotetheUS wirelessindustrythroughrollbacksinfederalregulation,and preemptionofstateandlocalregulation.

“Broadband service is not confined to state boundaries and should not be constrained by a patchwork of state and local regulations, ” said Commissioner Michael O’Rielly during the meeting, “and this is particularly germane to wireless services where mobile devices and the transmissions they carrycaneasilycrossstatelines. ”

“Ahodgepodgeofstaterulescouldseverelycurtailnotonly the next generation of wireless systems that we have been working so hard to promote, ” O’Rielly added, “but also the technologies that may rely on these networks in the future. Accordingly, any laws or regulations that conflict with or undermine federal broadband polices are preempted. Given mydruthers,Iwouldactuallygoevenfurtheronpreemption, butIcouldonlycarrythedebatesofartoday. ”

Commissioner O’Rielly ’s words and similar statements by his colleagues should give cities pause when considered in combinationwithothereffortsthisyearbytheFCCtocurtail localauthorityordriveanarrativethatlocalgovernmentsare theprimaryobstacletoubiquitousbroadbandavailabilityand adoptionintheUS.Thepreemptionprovisioninthisweek’s net neutrality order is the tip of a much larger preemption icebergloominginthefuture.

Preliminary rulemaking activities undertaken by the FCC’s Wireline Competition Bureau and Wireless Telecommunications Bureau this year indicated an interest by the agency in creating a competitive advantage for wireless providers. The preemptive ideas proposed by the FCC would limit local governments’ ability to ensure equitable broadband infrastructure deployment in their communities and hamper local digital equity efforts to preventredliningofbroadbandinfrastructure.

The proposals included possible reforms to utility pole attachment fees, tighter restrictions on the time city governments have to review wireless facilities siting requests,particularlyfor“smallcell”infrastructure,limitson what things cities may consider when deciding whether to approveordenyasiteapplication,restrictionsonwhatcities may negotiate in their agreements with providers, and even what they may charge for access to public property like the rightsofway.

FCC Chairman Ajit Pai this year also formed a new Broadband Deployment Advisory Committee. While the group was broadly described as working provide the FCC with guidance on how to expand broadband infrastructure deployment,ithasfocusedsolelyonwhatitperceivesasthe main obstacle to broadband — state and local government

action, and to a lesser extent, federal regulations — and not at all on what constructive federal policy or actions by industrycouldbetakentoexpandaccessandadoptionacross communitiesandincomelevels.

WhileNLChasfoughthardforlocalgovernmentstohavea placeonthisadvisorycommittee,localgovernmentofficials are still outnumbered ten to one by industry and other interests.

Additionally, more than half of state legislatures or regulatoryboardshavetakenactiontopreemptlocalcontrol over “small cell” wireless facilities in the last few years, under the reasoning that compliance with local regulations andmarket-ratepaymentforuseofpublicpropertyisoverly burdensome for wireless providers, and is quashing broadbanddevelopmentandinvestment.

These preemptions have harshly limited local review processes, set strict caps on rents for use of public property, and effectively forced municipalities to subsidize wireless development for the sake of “streamlining” permitting processes ahead of the deployment of 5G wireless technologies.

Nearly half of states have also placed roadblocks in front of theestablishmentofmunicipalbroadbandnetworksbycities or public utilities. Colorado, which requires local governmentstoholdballotinitiativesforresidents’approval before investing in building fully or partially public networks, has seen intense lobbying in local elections by ISPstopreventtheseinvestments.

Most recently, Colorado ISPs spent nearly a million dollars on an unsuccessful campaign to prevent the City of Fort Collinsfromestablishingabroadbandutility.Combinedwith theoverturnofnetneutrality ’scommoncarrierrequirements, cities have ever-fewer options for ensuring that their residents have affordable access to reliable, unrestricted broadband.

NLC has pushed back on these preemption attempts, including the overturn of net neutrality, the Broadband Deployment Advisory Committee’s unfair premise, and regulatory proposals to change the way infrastructure is governedbylocalities.Whilethenetneutralityorderwillbe fought in the courts by state attorneys general and others, cities must focus on the larger preemption threat within the federalgovernment.

Broadband infrastructure will be vital for the future of transportation, healthcare, education, and the American economy as a whole. Cities must fight to protect the ability todeterminetheirownbroadbanddestiniesandthoseoftheir residents, rather than having them determined by the business decisions of an increasingly consolidated ISP market.