A federal court overturned the FCC's attempt to preempt state laws in Tennessee and North Carolina that limited municipal broadband buildouts, so some Democratic Senators (and one independent) are trying to do it themselves.
Sens. Cory Booker (D-N.J.), Ed Markey (D-Mass.), Claire McCaskill (D-Mo.), Angus King (I-Maine), Ron Wyden (D-Ore.), and Richard Blumenthal (D-Conn.) have introduced a bill they say is intended to give cities the "flexibility" to meet the broadband needs of their residents when it is not being met otherwise.
The Community Broadband Act would amend the 1996 Telecommunications Act to ban state, local or tribal statutes or regs that prohibit cities from providing high-speed broadband.
Actually, the FCC effort was not aimed at preempting laws preventing buildouts, authority it conceded it did not have, but to preempt laws that limited expansion of already-authorized municipal nets.
The bill covers that too, saying that the laws can't inhibit "any public provider from providing telecommunications services or advanced telecommunications capability or services to any person or any public or private entity."
Republicans in Congress have generally opposed preemption, citing, among other things, failed public buildouts leaving taxpayers holding the bag and the overbuild impact on private providers.
The senators have tried to address some of those issues.
The bill says that if any project fails, no federal funds will be provided to a public entity "specifically to assist" it in preserving or reviving the project—unless it was in a "disaster area" as declared by the President.
A public, or public/private broadband project must also first announce its intentions, publish notice of those intentions, describe the service and coverage area, and provide the private sector and the public with an opportunity to weigh in, and give the private sector a chance to bid on providing the service.
The Sixth Circuit U.S. Court of Appeals concluded last year that the FCC’s authority to promote advanced telecommunications deployment in a reasonable and timely manner did not extend to deciding whether a state or its municipal subdivision gets to control broadband buildouts, unless Congress has explicitly granted the FCC that power. Markey and company are trying to make that explicit grant.
Still, a Democratic bill in a Republican Congress has a steep climb to the President's desk. Rep. Anna Eshoo (D-Calif. ) introduced a muni broadband bill in the last Congress that did not get traction, patterned after one introduced in 2005 by Sen. Frank Lautenberg (D-N.J.) and John McCain (R-Ariz.).