Opposition Builds to Muni Broadband Law in North Carolina

Wilson extended its Greenlight muni broadband service into Pinetops while such a move was briefly legal due to an FCC pre-emption order, but the expanded service became illegal again after the 6th U.S. Circuit Court of Appeals upheld the state law (see 1609270035). Wilson said it would turn off the service at the end of last month, but discovered a loophole to extend service temporarily while two state lawmakers pledged to introduce legislation in 2017.

“The primary objective of broadband policy ought to be to stimulate faster, better, cheaper broadband,” said Levin, according to prepared remarks. He was chief architect of the FCC’s National Broadband Plan. “There is no evidence that that law does so. There is evidence that that law makes broadband in North Carolina slower, worse and more expensive.” That Wilson might have to shut off service in Pinetops shows the law is bad, he said. “So when the newly elected General Assembly returns to Raleigh, I hope your community, Pinetops and many others speak with a unified voice and tell the Assembly: Tear down the law that prohibits you from providing faster, better, cheaper broadband.”

But Phoenix Center Chief Economist George Ford countered it's “one more instance of having to bail out a city that made a bad decision.” The city took advantage of a brief window between the FCC decision pre-empting and the court upholding the North Carolina law, but “any lawyer with any sense knew” the FCC order would be overturned, he said. The state law has a solid legal foundation, as the 6th Circuit found, and it’s economically solid because it prevents the “excessive subsidization” that makes municipal broadband anticompetitive to the private sector, Ford said. Letting Pinetops off the hook may only encourage more bad behavior by municipalities, he said.

Pinetops won a temporary reprieve from disconnection last month, after Wilson Greenlight initially said it would have to turn off service Oct. 28. The Wilson City Council voted Oct. 20 to provide free service to customers outside Wilson County, including Pinetops, for up to six months to prevent the disconnection. Wilson city officials said the no-fee arrangement complies with the 2011 state broadband law. After the vote, Wilson Mayor Bruce Rose said the short-term fix isn’t perfect but was the best option. “Taking broadband service from the people of Pinetops would have been a terrible blow, especially when they are still recovering from Hurricane Matthew.”

It's a temporary fix “that will hopefully allow us to find a permanent solution,” said Greenlight General Manager William Aycock in a Community Broadband Networks podcast Tuesday by the Institute for Local Self-Reliance. After announcing the possible shutoff, an effort began to find a way to keep service going, he said. Then, Hurricane Matthew and the flood emergency in the state "increased the amount of weight on trying to find a solution,” and Wilson Greenlight attorneys found the free service loophole in the state law. "Obviously it's not a permanent solution, and it wouldn't be a solution at all if it were not for our private sector partners," Aycock said. The industry partners are providing free service to Wilson so it can serve Pinetops, he said.

The action was connected to a pledge by two Republican state legislators to sponsor community broadband legislation in the 2017 session of the North Carolina General Assembly. The state lawmakers -- Rep. Susan Martin and Sen. Harry Brown -- are co-chairs of the Joint Legislative Economic Development and Global Engagement Oversight Committee. “It is important for Pinetops to be able to use Greenlight in its recovery from Hurricane Matthew,” Martin said. Brown added: “We are doing everything we can in the General Assembly to help small towns and rural areas get the resources they need to share in the economic growth in this State.” The General Assembly reconvenes Jan. 11.

There also was an effort to win sympathy from Republican Gov. Pat McCrory -- or the Democrat who might replace him. Pinetops officials met Oct. 7 with William McKinney, a counsel to Attorney General Roy Cooper, Pinetops Commissioner Suzanne Coker-Craig told us. Cooper is the Democratic challenger to McCrory in Tuesday's election, but McKinney visited Pinetops as a representative for the attorney general’s office. It was a “very positive meeting,” said Coker-Craig. She and other Pinetops officials explained why the Greenlight fiber service was important to the town, and McKinney seemed attentive, she said. The state official made no commitments, but said he would take information from the meeting back to the attorney general, she said. The attorney general’s office declined comment.

Pinetops officials met with McCrory’s staff in September, but nothing was promised then, either, officials said in our previous report. With the election imminent, the North Carolina governor race is still a tossup, but Cooper has a 2.3-point edge, according to an average of Oct. 20 to Nov. 1 polls by RealClearPolitics. Neither the McCrory administration nor the Cooper campaign commented Friday.

FCC Chairman Tom Wheeler promised to testify against state muni broadband restrictions before any state legislature that invites him. After the 6th Circuit ruling, "the battlefield is no longer the FCC and the courts, but state legislatures,” Wheeler counselor Gigi Sohn said in a speech last month at the Coalition for Local Internet Choice conference (see 1610180056).