Additional amicus briefs were filed with the U.S. Court of Appeals for the Sixth Circuit (Cincinnati) this week in support of the FCC’s order preempting Tennessee and North Carolina laws restricting municipal broadband networks.

Silicon Valley trade group Internet Association, which represents companies such as Amazon.com, Google, Inc., Facebook, Inc., and Netflix, filed a brief with the court in consolidated cases beginning at “Tennessee v. FCC” (case 15-3291), which involves challenges to the FCC’s recent decision preempting the Tennessee and North Carolina state laws at the request of the Electric Power Board (EPB) of Chattanooga, Tenn., and the city of Wilson, N.C. The Commission argued that once a state authorizes municipalities to provide broadband service, the FCC has authority to preempt state restrictions, pursuant to the directive in section 706 of the 1996 Telecommunications Act to ensure reasonable and timely of advanced telecommunications capability.

The Internet Association points out in its amicus that there is limited competition in the high-speed broadband market, especially in the two states that are trying to overturn the FCC’s decision.  “Access to residential broadband Internet is an essential tool in our daily lives, and yet an estimated 55 million Americans lack access,” said Abigail Slater, Internet Association Vice President of Legal and Regulatory Policy, in a statement.

The brief further points out that “almost one fifth of Tennesseans lack an option for accessing the Internet at broadband speeds, more than 65 percent have access only to one option, and 17 percent have access to two providers. The Tennessee counties that neighbor the EPB’s service area fare even worse: almost one third of residents have no provider offering broadband services, nearly two thirds have access only to one provider, and only five percent have access to two providers. The statistics in North Carolina’s counties that neighbor Greenlight’s service area are similar: one third of residents have no provider offering broadband speeds, two thirds have access to only one provider, and only three percent of residents have access to two providers.

The group points out in its brief that Congress affirmed the federal government’s role in ensuring access to broadband in the 1996 Act when it directed the FCC to “‘encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans by … removing barriers to infrastructure investment.’ If the Commission finds that deployment to all Americans is not happening in such a manner, Congress directed the Commission to ‘take immediate action to accelerate deployment of such capability …’ It is not surprising, therefore, that the Commission decided to grant the petitions of the Electric Power Board of Chattanooga, Tennessee, in whole, and the City of Wilson, North Carolina, in part.”

“Those decisions represent a step toward broadband abundance. In urging this Court to reverse the Commission’s decision, Petitioners and their amici ask the Court to take a step in the opposite direction, toward retrenchment, even in the face of the startling evidence regarding the state of broadband deployment and competition in America. We urge the Court to deny the petitions,” the Internet Association said.

A separate amicus filed by several public interest groups including the Benton Foundation, Common Cause, New America’s Open Technology Institute, Public Knowledge, and the Schools, Health & Libraries Broadband (SHLB) Coalition, also supports municipal broadband networks and the FCC’s preemption order.

“The FCC properly found that state laws burdening municipal broadband networks were ‘barriers to infrastructure investment,’” they state in the brief. “Thus, the FCC preempted those laws. While the Order was limited to preempting Tennessee and North Carolina laws, many other states have passed similarly burdensome laws, even when municipalities in those states have successfully built and sustained broadband networks.”

Their brief discusses three municipal networks – located in Longmont, Colo., Lafayette, La., and Tullahoma, Tenn. – that have been “tremendously successful, even when their state legislatures imposed barriers costing those municipalities valuable time and money” in an effort to counter the projects cited by amici for petitioners that are considered “failures,” including the networks in Burlington, Vt., and Provo, Utah. – Carrie DeLeon, carrie.deleon@wolterskluwer.com

Courtesy TRDaily