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Politicians, corporations, trade groups weigh in on NC’s municipal broadband law

The town of Wilson’s bid to overturn North Carolina’s 3-year-old law limiting municipal broadband deployment drew heaps of scorn and praise from the state’s politicians, city governments and advocacy groups in a public comment period that ended Friday.

The 71 comments lodged with the Federal Communications Commission included arguments from several prominent state officials: Republican state House Speaker Thom Tillis, state Rep. Marilyn Avila and N.C. Attorney General Roy Cooper, as well as the governments of Fayetteville, Mooresville, Highlands and Holly Springs.

Tillis is engaged in a high-profile U.S. Senate race against Democratic incumbent Kay Hagan. Cooper is a presumptive candidate for governor in 2016. Avila, a Raleigh Republican, sponsored the 2011 law that imposes restrictions on municipal broadband network’s like Wilson’s Greenlight and Salisbury’s Fibrant.

All three contend the federal commission lacks the authority to pre-empt North Carolina’s broadband statute, called the Level Playing Field Law, putting Cooper, a Democrat, in the same camp as the conservative John Locke Foundation and Americans for Prosperity.

“As a legislator, I supported the Level Playing Field Law because I sensed the need to protect citizens and taxpayers from poor local government financial decision making,” Tillis wrote.

“I and my colleagues were all too familiar with some of our municipalities’ experimentation with speculative proprietary endeavors,” Tillis added. “We felt bound to act to curb the ever growing list of examples where precarious investments ultimately left innocent taxpayers holding the bag.”

Comments also flowed in from national organizations and residents in several states, including one calling himself Citizen X.

Wilson, along with Chattanooga, Tenn., has asked the FCC to override state broadband laws. Wilson, about an hour east of Raleigh, in 2009 launched its $33 million Greenlight service with high-speed Internet, phone and TV services. Greenlight’s 1 gigabit top speed is among the fastest in the nation and 20 times faster than Time Warner’s highest residential speed in Wilson.

Officials commenting for other North Carolina towns said the law is preventing them from expanding or building broadband networks that were planned or under development. They say they need ultra-high speed networks to attract businesses, and denounce the Level Playing Field Law as a gift to help the telecom industry dominate local markets.

“Local communities are best positioned to determine the best options for their citizens, businesses and institutions,” according to the Fayetteville’s filing. “Modern broadband Internet infrastructure is the lifeblood of our 21st century global knowledge economy.”

North Carolina’s broadband law is not an outright ban. Its restrictions prevent local governments from pricing broadband lower than it costs to deliver the service, and require referendum votes on borrowing money to build out the systems, among other things.

The law was pushed by AT&T, Time Warner Cable and the N.C. Cable Telecommunications Association. They contended that local towns, which are tax-exempt and have access to a captive base of taxpayers to fund operations, had an unfair advantage over businesses.

The cable industry dismisses the towns’ public-service arguments as a smokescreen for greed. AT&T wrote that municipal networks scare off private sector broadband investment in the same area and have the effect of suppressing competition.

In addition to the policy question of whether or not it’s wise let cities compete with giant telecoms, the FCC is also hearing arguments as to whether the federal agency has a legal right to overturn state statutes.

AG Roy Cooper, the state’s top law-enforcement officer, said that as a legal matter, the FCC would overstep its bounds if it quashes a state telecom law.

“The federal government has no special expertise in or tradition of regulation of city governments,” Cooper wrote, saying the 1996 Telecommunications Act “does not include express language to grant the Commission the power to preempt state laws.”

Perhaps the most unusual North Carolina comment came from Elon University law professor Enrique Armijo, who said that content restrictions on government communications services amount to a free speech violation.

Armijo said Chattanooga’s network prohibits transmitting obscene, threatening, abusive, hateful, excessive and annoying material, which puts government officials in the position of judging and restricting content.

“Should the Commission encourage the development of local government-run Internet networks without protecting the constitutional rights of their users, it will be ratifying those governments’ constitutional violations as well,” he wrote.

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