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AG Pressed to File Suit Over FCC Broadband Ruling

A trio of prominent Tennessee House Republicans on Tuesday called for the state’s attorney general to challenge the Federal Communications Commission’s recent decision to strike down state restrictions on municipal broadband expansion.

Last week the FCC ruled in favor of the Electric Power Board of Chattanooga and their request to set aside a 1999 Tennessee law limiting municipal electric providers to offering internet services only within their electric footprint.

House Majority Whip Jeremy Durham and House GOP Caucus Chairman Glen Casada, both of Franklin, as well as Dresden Rep. Andy Holt, vice chairman of the House Agriculture and Natural Resources Committee, are urging state Attorney General Herbert Slatery to fight back against what they term the FCC’s “unconstitutional violation” of Tennessee’s sovereignty.

The three Republicans are accusing the FCC of having “usurped Tennessee law.”

In a press conference at the state Capitol Tuesday, Durham questioned the legality and appropriateness of “an unelected, federal body…overturn(ing) laws that have been made by the duly elected members of the Tennessee General Assembly.”

“I believe it’s another example of federal overreach. It doesn’t have to be the pen of Barack Obama and an executive order, sometimes it’s these unelected bodies like the FCC,” Durham said.

Whether or not the FCC ruling constitutes “good public policy or bad,” isn’t so much the issue as that the subverting of state laws sets “a very dangerous precedent,” said Durham.

According to FCC Chairman Tom Wheeler, the decision was made because “some states” have limited competition by designing “thickets of red tape,” and through its action, the commission is “cutting away that red tape consistent with Congress’s instructions to encourage the deployment of broadband.”

EPB officials, though cautious of possible pending litigation, praised the decision last week.

“Many neighbors have been struggling with the economic and educational disadvantages of not having access to broadband services. We are looking for the quickest path forward to help those neighbors join the 21st century information economy,” said Harold DePriest, EPB’s president and CEO, in a press release.

Gov. Bill Haslam told reporters Tuesday he’s still weighing options and mulling the FCC ruling and hadn’t made a decision on if he supports Tennessee appealing. “Before you decide to appeal something, you have to make certain that there’s a reasonable reason to do that,” Haslam said, adding that he’ll be looking to Slatery for guidance on the issue.

Haslam said he recognizes “value” in people gaining access to high-speed Internet if it is otherwise unavailable, but there are also concerns about “the local government subsidizing something that makes it hard for business to compete.”

The General Assembly’s Democrats issued a press release Tuesday afternoon criticizing the governor and lawmakers for working “to limit consumer choice,” instead of supporting the FCC’s decision to expand the choice for Tennesseans.

According to both chambers minority leaders — Memphis Sen. Lee Harris and Rep. Craig Fitzhugh of Ripley — Tennessee consumers “consider the matter settled” with the FCC ruling, and “don’t care so much about these technicalities,” if it means having access to high speed internet service.

Tullahoma Sen. Janice Bowling, a Republican, is pushing legislation this year to let municipal electric companies offer their services to what she called the “under-served or un-served” areas of the state.

Neither chamber has taken action on the bill.

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TN Senate Dems Criticize Haslam, Lawmakers for Opposition to FCC Municipal Broadband Ruling

Press release from the Tennessee Senate Democratic Caucus; March 3, 2015:

Consumers want choices, not government obstruction to limit Internet options

NASHVILLE – Tennessee lawmakers should embrace competition when it comes to broadband services, not work to limit consumer choice, Democratic leaders said.

“Anyone who has spent hours on the phone with a service provider to dispute a bill or get proper services knows consumers need more choices when it comes to Internet service,” Senate Minority Leader Lee Harris said. “It is disturbing to see lawmakers act so quickly to limit consumer choice when Tennesseans are demanding more.”

Last week the Federal Communications Commission ruled that Chattanooga’s EPB could provide lightning-speed Internet outside the municipal power distributor’s service area. The move would mean new options for consumers in the Chattanooga area and increased broadband speeds, which are a critical tool for economic development outside of major cities.

However, the governor, the attorney general and other lawmakers have stood in opposition to consumer choice, even considering a lawsuit against the federal government at great cost to the taxpayer.

“Communities like mine in rural West Tennessee don’t care so much about these technicalities,” said House Democratic Leader Craig Fitzhugh. “They care less about service areas and more about having access to fast, reliable Internet. If a provider wants to bring that to my constituents, I don’t think I want the state to get in the way.”

The decision whether to sue the FCC on this issue will be a true test of the attorney general’s independence.

“With the FCC ruling, consumers consider this matter settled,” Sen. Harris said. “No one wants to see our attorney general give in to demands from lawmakers who want to play politics rather than do what’s best for consumers and our economy.”

Bowling Looking to Ease Expansion Limits on Government-Owned ISPs

Calling high-speed internet “an essential utility for the 21st Century,” Sen. Janice Bowling wants to ensure rural Tennesseans have access to it.

Sponsored by Bowling and Rep. Kevin Brooks, R-Cleveland, SB1134/HB1303 would allow municipal broadband providers to expand if they “obtain the written consent” of electric co-ops serving the affected areas.

A Republican from Tullahoma, Bowling is pushing to repeal a 1999 state law that restricts municipal electric providers from offering Internet service beyond their designated boundaries.

The Federal Communications Commission also voted Thursday to override those state laws.

However, Bowling told TNReport she wasn’t sure when the ruling would take effect, and would prefer to “go ahead and do what we need to do in Tennessee.”

According to FCC Chairman Tom Wheeler, the federal body’s action cuts away the “bureaucratic red tape” put on municipal broadband networks by states, and fulfills their congressional mandate to expand broadband service. “It is a well established principle that state laws that inhibit the exercise of federal policy may be subject to preemption in appropriate circumstances,” Wheeler said.

Wheeler called the decision “pro-competition,” and said consumers shouldn’t be restricted to “second-rate broadband.”

The Electric Power Board of Chattanooga and other municipal providers want the leeway to provide their government-funded high-speed broadband to areas beyond their electric system’s borders.

However, Tennessee’s private sector broadband providers argue many rural residents do have access to broadband, and the high speeds touted by municipal providers, while fashionable, are unnecessary and shouldn’t be subsidized by local tax dollars.

Tennessee Telecommunications Association Executive Director Levoy Knowles told TNReport Thursday his organization is opposed to the federal government “taking that authority away from the states.” TTA opposes Bowling’s legislation as well.

“We don’t feel like it’s fair to be competing against government-owned facilities in these same areas that we’ve spent millions of dollars in to put forth a modern network and provide our customers high speed internet service,” Knowles said.

TTA is composed of 21 small Tennessee telephone and broadband companies that serve “approximately 30 percent” of rural Tennessee. Nearly all their customers “already have broadband capability available to them” and the Internet service packages they offer often include “the same speeds and services and products that you can get in the metropolitan areas,” said Knowles.

Bowling argues, however, that her measure removes “the regulatory restriction” government has imposed. She believes consumers should have choices of providers “so that the people, locally, can be self-determined.” Those choices should include the opportunity for a publicly funded “municipal electric provider to come in and negotiate a deal,” she said.

While she understands businesses have “a bottom line” to meet, Bowling posits that rural communities shouldn’t be “held hostage” by limited private-market choices. Furthermore, even if the Internet services that are currently available are sufficient, they often aren’t for commercial uses. “It doesn’t work for doctors and it doesn’t work for bankers, it doesn’t work for a lot of the commercial uses of fiber,” she said.

High-speed internet “is to the 21st century what electricity was to the 20th century,” Bowling said. She compared providing broadband service to rural communities to “what the 1937 Rural Electric Administration bill did nationally, to allow these co-operatives.”

“So essentially what I’m asking for is the ability to form these high-speed broadband cooperatives in areas that are under-served or un-served,” Bowling said.

The Tennessee Municipal Electric Power Association, which represents the state’s 60 municipal electric providers, favors Bowling’s bill.

In a recent press release, Jeremy Elrod, TMEPA’s director of government relations likened the issue to a city’s decision on how to best provide power and water and called Internet service “the next utility of the 21st century.”

“Municipal electric broadband should be allowed to be an option for more communities across Tennessee,” Elrod said.

But opponents of Bowling’s legislation contend if the goal is high-speed internet blanketing the state, government officials should get out of the way and facilitate free-market competition between existing providers by reducing regulations.

In December, Knowles said while he understands the desire to extend service to unserved areas, his organization is “opposed to allowing the expansion when there is already service available.”

“Because when my members compete with the municipals, then we’re also on their pole attachments and we’re paying taxes — ad valorem taxes and sales tax and other local taxes — and governmental agencies many times are exempt from those type of taxes,” Knowles said.

However, Bowling called that a “strawman” argument.

“There’s no advantage to being in the same utility group that owns the pole, because their business plan that is approved and checked by the comptroller has to show that that has been paid for,” Bowling said.

But while state-level Republicans seek to strike down the restriction, Rep. Marsha Blackburn, R-Tenn. 07, has introduced legislation to block the FCC decision at the federal level. Blackburn also criticized the FCC’s vote in support of regulating the internet as a “1930s era public utility” under “net neutrality.”

Blackburn: Net Neutrality a ‘Trojan Horse’ For Gov’t Takeover of Internet

Press release from U.S. Rep. Marsha Blackburn, R-Tenn. 07; February 26, 2015:

Congressman Marsha Blackburn (R-TN) today issued the following statement in response to the FCC’s vote in favor of regulating the Internet as a utility.

“Today the FCC voted to regulate the Internet like a 1930s era public utility. It is indisputable that re-classifying the Internet in this manner will lead to billions of dollars in new fees and taxes for consumers. More importantly, Title II Net Neutrality is a Trojan horse for a government takeover of the Internet. The courts have already rejected the FCC’s attempts to regulate the Internet. The light touch that has allowed the Internet to prosper will be replaced by a heavy-handed approach that will stifle innovation and hand control over placement of content to the government.

“Now that the FCC has voted to approve the Obama Internet plan, the American people will get to find out what’s in it. I look forward to reviewing the President’s 300-page plan when it is made public. As the Wall Street Journal noted, while the FCC conducted an open notice and comment period, Obama aides secretly gathered Internet activists behind closed doors at the White House to write the real rules. The undue influence exerted by the White House has left a cloud hanging over the ‘independent’ FCC and this entire process.

“Unfortunately, the American people are no stranger to being deceived by this Administration (see Politifact 2013 Lie of The Year). The President’s pledge of rules preserving‘openness’sounds eerily similar to‘If you like your health care plan, you can keep it.’”

Blackburn Files Bill to Block FCC From Overriding State Municipal Broadband Laws

Press release from U.S. Rep. Marsha Blackburn, R-Tenn. 07; February 26, 2015:

Congressman Marsha Blackburn (R-TN) and Senator Thom Tillis (R-NC) today introduced legislation to prevent the Federal Communications Commission (FCC) from overriding state and local municipal broadband laws.

The Blackburn-Tillis legislation says that the FCC cannot pre-empt states with municipal broadband laws already on the books, or any other states that subsequently adopt such municipal broadband laws. The bill also includes a Sense of Congress stating that the FCC does not have the legal authority to prohibit states from implementing municipal broadband restrictions. Original co-sponsors of the House legislation included Representatives Mike Pompeo (R-KS), Robert Pittenger (R-NC), Renee Ellmers (R-NC), Mark Meadows (R-NC), and David Rouzer (R-NC).

Earlier today, the FCC voted to effectively overturn North Carolina and Tennessee state laws that set requirements and conditions on municipalities competing with the private sector in the broadband marketplace.

“The FCC’s decision to grant the petitions of Chattanooga, Tennessee and Wilson, North Carolina is a troubling power grab,” Blackburn said. “States are sovereign entities that have Constitutional rights, which should be respected rather than trampled upon. They know best how to manage their limited taxpayer dollars and financial ventures. Ironically, they will now be burdened by the poor judgment of a federal government that is over $18 trillion in debt and clearly cannot manage its own affairs.

“I’m pleased to be working with Senator Tillis on this important issue. As former state legislators, we strongly believe in States’ rights and will fight the FCC’s liberal agenda. Chairman Wheeler’s regulatory appetite appears to know no bounds and is seeping dangerously into the lives of Americans. It is time for Congress to assert itself and protect States once again from unelected Washington bureaucrats.”

“It is disturbing, yet not surprising, that the FCC and Chairman Wheeler are attempting to deny the sovereign right of states to make their own laws,” said Senator Tillis. “After witnessing how some local governments wasted taxpayer dollars and accumulated millions in debt through poor decision making, the legislatures of states like North Carolina and Tennessee passed commonsense, bipartisan laws that protect hardworking taxpayers and maintain the fairness of free-market competition. Representative Blackburn and I recognize the need for Congress to step in and take action to keep unelected bureaucrats from acting contrary to the expressed will of the American people through their state legislatures.”

Click here to read the bill text of the States’ Rights Municipal Broadband Act

TMEPA Calls on General Assembly to Strike Down Municipal Broadband Restrictions

Press release from the Tennessee Municipal Electric Power Association; February 23, 2015:

Municipal Electric Broadband Service Restricted, Unable to Offer Fastest Service in the Country to Those Who Want It

BRENTWOOD, Tennessee – The Tennessee Municipal Electric Power Association (TMEPA) is seeking to end Tennessee’s constraint on municipal electric broadband so that communities can choose their internet providers and to give more Tennesseans access to the fastest broadband speeds in the country.

TMEPA consists of the state’s 60 municipal systems which serve 2.1 million homes and businesses, or 70% of Tennessee’s electric customers. TMEPA is supporting legislation (SB1134/HB1303) that removes the current limitation on municipal electric broadband providers that restricts broadband service to just its electric service territory. This change in the law would allow municipal electric broadband to expand to more areas where it is needed if those communities want it.

“High-speed broadband is the next utility of the 21st century, and municipal electric broadband should be allowed to be an option for more communities across Tennessee,” said Jeremy Elrod, Director of Government Relations for TMEPA.

Today’s world has made high-speed broadband vital infrastructure that drives local economies, promotes economic development, increases educational opportunities and outcomes, increases regional and global competitiveness, and allows more opportunities for telemedicine, telework, and a better quality of life. Communities with fast internet service become attractive for private investment, and communities without it are unable to provide the modern services that businesses and consumers need and want.

“With the critical need for more and better access to high-speed broadband, a community should have every option available to it as it tries to meet its needs,” said Elrod. “Just as a city decides for itself how to offer electric or water services, it should be able to decide for itself what kind of broadband service it wants.”

Across the state there is a vast difference in available internet speeds. Nearly half of rural Tennesseans still lack access to 25 megabits per second broadband, the FCC’s new broadband standard, and many have little to no internet connectivity at all. Conversely, municipal electric systems have made Tennessee the leader in the nation in per capita availability to gigabit speed broadband with 1 in 10 Tennesseans having access to the fastest speeds in the country. All Tennessee consumers and businesses have access to electric service, but not all have access to the new necessity of high-speed broadband.

Tennessee’s municipal electric broadband providers use fiber optic cable to deliver broadband services. This state of the art connection makes its capable to provide the fastest internet speeds available in the country, 1 gigabit per second. The high capacity of fiber gives additional benefits to consumers and businesses such as freedom from data caps and internet speeds that are the same whether downloading or uploading data.

Because fiber is the fastest, most reliable way, and most secure way to transmit data, many Tennessee municipal electric systems are already installing fiber optic systems for its smart grid capabilities. The result is millions of dollars invested in a smart grid that increases system reliability, reduces outage times, and helps to keep electric rates competitive for everyone. Given the ability to use its fiber system for more purposes, a municipal electric system can develop innovative solutions to meet its community’s broadband needs.

“Our members value one thing above all: serving their communities,” said Mike Vinson, Executive Director of TMEPA. “In today’s world that’s more than just keeping electric service affordable and reliable, it now includes providing other services like high-speed broadband. Tennessee’s municipal electric systems strive to meet their community’s needs.”

Municipal electric systems were established in the early 20th century as a locally controlled and governed means of delivering electricity to those in need of the new necessity of electric power. This “public power model” helped electrify the state and make it attractive because of its affordable and reliable power.

“The 21st century version of electrification is high speed broadband, providing the same benefits in both eras: access to modern utilities for more people across the state decided at a local level,” says Vinson. “Just as local electric systems did then, municipal electric broadband helps to spur job creation, encourages innovation, and is a driver for economic growth, all by bringing modern services to their communities.”

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Additional Information:

Current Municipal Electric Broadband Providers
(g) – offers gigabit speeds * – beginning service ** – offer gigabit speeds soon

  • Bristol (g)
  • Chattanooga (g)
  • Clarksville (g)
  • Columbia
  • Erwin *
  • Jackson **
  • Morristown (g)
  • Pulaski
  • Tullahoma (g)

To view testimony on what some of Tennessee’s broadband needs look like, visit the General Assembly’s website to watch the February 10 meeting of Senate Commerce and Labor Committee which held a hearing on the topic.

Blackburn: Obama ‘Tone-deaf’ in Push for FCC to Strike Down State Restrictions on Municipal Broadband

Press release from U.S. Rep. Marsha Blackburn, R-Tenn. 07; January 14, 2015:

Congressman Marsha Blackburn (R-TN) issued the following statement in response to President Obama’s push for broadband policies that trample on states’ rights.

“In Tennessee we have a term to describe people like President Obama — tone-deaf. At a time when Americans think the biggest problem facing our nation today is big government, you would think he’d have gotten the message by now. We don’t need unelected bureaucrats like FCC Chairman Tom Wheeler dictating to our states what they can and can’t do with respect to protecting their limited taxpayer dollars and private enterprises. As a former State Senator in Tennessee, I am offended that President Obama would repeatedly support policies that trample on states’ rights.

“This ‘Washington knows best’ mentality is exactly why Americans put Republicans in control of Congress last November — to stop people like Barack Obama and Tom Wheeler. I will continue to work with my colleagues in the House and Senate to block any attempt by the FCC to insert themselves into our states’ sovereign economic and fiscal affairs. These are decisions that should be left up to Congress with participation from the American people, not sent down on high from unaccountable federal bureaucrats looking down on us from their ivory tower.”