Communities try to circumvent state laws that divide broadband access

In 19 states, state laws curb the municipalities from building or expanding high-speed Internet service networks. Supporters say the reason for the laws "is to limit taxpayer exposure to projects that at times fail and for which there may be little demand," Edward Wyatt writes for The New York Times.

However, Tom Wheeler, the Federal Communications Commission chairman, said providing broadband Internet access is important and that the commission can override the state laws. This contributes to the debate about how much authority the federal commission has over the states and raises the question of whether local government or private companies should take responsibility for providing the service.

Chattanooga, Tenn., and Wilson, N.C., have both requested that the commission override their state laws, and the F.C.C. is expected to respond next year. "If you want to have economic development in a town like this, you've got to have fiber," said Gregory Bethea, the town administrator of Pinetops, a town of 1,300 people approximately 20 miles northeast of Wilson.

In most cities, more pressing issues exist—like the need for more or better roads and bridges, said Charles M. Davidson, a director of the Advanced Communications Law & Policy Institute at New York Law School. Broadband "is not where we have the most compelling need for investment. And when government networks fail, the failure is on the backs of the people," he said.

However, those who support community broadband say "the level of opposition the systems provoke from cable and phone companies is evidence that they work," Wyatt writes. "If the people, acting through their local governments, want to pursue competitive community broadband, they shouldn't be stopped by state laws promoted by cable and telephone companies that don't want the competition," Wheeler said.

The FCC will have to get past a United States Supreme Court precent if it wants to invalidate the state law. "I am pretty confident that if the F.C.C. pre-empts state laws, they ultimately will lose those cases," said Randolph J. May, president of the Free State Foundation and a former associate general counsel for the F.C.C. "The Supreme Court jurisprudence is pretty clear."

However, Wilson and Chattanooga have contended that broadband service is considered an information service rather than a telecommunication service, so the Supreme Court's rule may not apply. (Read more)