FCC loses court battle to let cities build their own broadband
theverge.com
theverge.com
On one side, I think every community should have the right to build whatever infrastructure they please.
On the other, I agree that the FCC is a federal governmental organisation that should not have precedent over a State's rights. Something which has been abused by the courts for the last 50 or so years.
However I think everyone can agree that what is happening is corrupt. State/municipality legislatures are taking money and setting rules. It's a tough thing to stop. Can you remember a time when you voted that you were familiar with all the candidates for both state and city positions? I know I can't. Not even close. I usually just vote a ticket.
Another question is...why do we need representatives at the city level? Can we not design a system to allow citizens to govern themselves?
City councils' are probably the most corrupt governing bodies today. Yet everyone is so concerned with Republican/Democrat and the presidential race that we forget what affects us the most, elected city officials. The whole thing is backwards.
There are some improvements to local governments, like [OpenGov.com][1], but that is only the first step. The people of a community should get to decide directly if they want to build their own broadband system, or only allow a select few, large corporations, own it.
[1]: http://opengov.com/
On the other hand, the whole point of the federal government is to preempt state action when it comes to interstate infrastructure like the Internet and the wires that carry it.
Think about how european citizens feel about the E.U. Today it would be crazy to ask a country like Germany to just roll over to the demands of the E.U. But I'm sure 200 years from now, if the E.U. is still around, that line will be a lot more blurry. This is essentially the position america is in.
Fun fact: At one point U.S. states each had their own currencies
For basically every progressive ideal, none of it is pioneered by the federal government.
Gay marriage, legalization of drugs, continuing environmental standards, renewable energy, more sustainable living, and I'm sure many more, are all things that various states pass laws surrounding before the federal government steps in.
In more depth, the U.S. is vastly more culturally diverse than most other nations. Its history of open immigration means it is now culturally a distorted, but still mostly recognizable, 1:20 model of the rest of the world.
If you ever want to visit India, China, Italy, Greece, Poland, Mexico, Sweden, and Germany in one day, just fly to Chicago and buy a CTA pass.
It is not a one-size-fits-all country. If the state is protecting a law that seems backward to you, it may be because they live on the other side of the looking glass from you. To them, your opinion is backward.
In Wisconsin, you can buy olives, gin, and vermouth in the same store, but only before 9 PM. In North Carolina, you have to buy the olives and vermouth in one store, and the gin from another. Why are the laws different? Because the people who live in those places, on average, prefer it that way.
State autonomy also allows for a limited sort of political experimentation. For instance, North Carolina can experiment with telling transgender people what bathrooms they must use, and Colorado can experiment with legal recreational marijuana. By observing the change in state economics, other states can respond more appropriately to the national zeitgeist. Federally, marijuana is still schedule I, and transgender people are not strongly protected against discrimination, but state autonomy has shown that the feds are wrong about weed, and that people prefer their identity to be something that is declared rather than imposed.
Other people may prioritize such things differently.
I agree that there is value in trying a diversity of approaches, but I'm doubtful that a "will of the people" explanation can explain the state by state differences. Assume two groups of people, one from North Carolina and one from Wisconsin, but somehow we didn't know which group was from which state. In an attempt to determine this, we poll each group with a single written question about how best to regulate the sale of olives.
At what group size are we able to reliably identify which group is which? I'm doubtful that this is possible to do with greater than 90% accuracy at any group size less than the full population of each state. To the extent that it might be possible with lower accuracy, I'd guess it's based on the "status quo" rather than an actual "preference".
For many issues, I think it's likely that the initial decision is essentially random: one merchant convinces one legislator to propose a law. That legislator trades favors with other legislators to get the law passed. With the patina of time, the arbitrary self-interested law becomes associated with prosperity, "strong moral values", and evidence that Our Great State is still in the favor of God.
ps. I'd been meaning to ask you why your moniker is "logfromblammo", but a web search delightfully answered this for me: https://www.youtube.com/watch?v=2C7mNr5WMjA. I'm embarrassed to say that I previously was ignorant of this piece of retail history. Thank you.
It is perhaps instructive to note that the US is the 4th largest country by landmass. Canada, 2nd largest, is also a federation. (The other two are Russia and China)
Should Mississippi rule over California? Should New York rule over Texas? Most will reject at least one of these propositions. Thus, the United States are a system of divided powers.
> I agree that the FCC is a federal governmental organisation that should not have precedent over a State's rights. Something which has been abused by the courts for the last 50 or so years.
...and then say this:
> Can you remember a time when you voted that you were familiar with all the candidates for both state and city positions? I know I can't. Not even close. I usually just vote a ticket.
...makes me think you don't really care about states' rights.
It's a very hard problem, one thats solution is hard/unknown and may not even involve election "representatives" (do they REALLY represent you for their entire term? A big check from a corporation is hard to turn down and somehow legal in many cases.)
While the FCC's top-down approach to affecting change here would have probably been the most efficient; realistically, this type of change will probably need to come from the residents of the various states (bottom-up).
I suspect part of the problem is that people don't know that there are state laws, local ordinances and a lot of money changing hands to ensure the monopolistic behavior stays intact. And the reason they don't know is because 1) current options are "good enough" 2) status-quo bias makes us think change is too hard
I live in CT. I have only one option for broadband (which stinks, but its good enough). However, after reading about this FCC judgement... I'm kind of interested to see what effect that would have had in CT and my local town if it had gone through. I suspect its not going to be an easy process to dig this information up. Thoughts on places to start, what to look for?
But it seems like state gov'ts are blocking municipalities. [0]
[0] State of N. Carolina blocks municipal broadband: http://arstechnica.com/tech-policy/2015/05/north-carolina-su...
Appreciate the link!
The reason is that he comes from a wealthy, populous district. It is easy for him to fundraise from liberal constituents. For the rest of the state, he explained, many legislators are forced to fundraise from lobbyists in Sacramento - 90% of their fundraising instead of 10% like him. This results in lobbyists having extreme control over much of the legislature. E.g., the tobacco lobby, which has almost no actual business in California since very little tobacco is grown here, instead has enormous influence because they can easily buy legislators.
States are much less powerful than the federal government. They can be played against each other. The elections and laws are much less closely watched. Individual billionaires can easily control an entire state, where they might struggle on the federal level.
Of course, none of this is terribly different at the federal level either - Congresspeople are pretty cheap, and lobbyists have tons of cash. The American form of government is thoroughly rotten.
----
As for hope, I like: participatory budgeting. I think all municipalities should be using this in some form. This has apparently been used with some success in Porto Alegre, where the basic form is: each neighborhood sends a representative with a project proposal and a request for funds, e.g., we need a library, we need to repair sewer pipes, we need to build a sidewalk, it will cost us $X. Some fraction of the city budget is allocated to be spent on such projects (say, 10% or 20%). All of the neighborhood representatives vote on which proposals should be funded; the funds are used.
The mechanism is simple, extremely democratic, and forces some neighborhood organizing, all of which seem like they would be great things for municipalities.
Like what? There are still some cities in the US that are a true democracy. What ends up happening is a bunch of old men show up once a week to make the laws (young and the women are not prohibited, but they rarely show up).
The above is already bad enough, but it gets worse. If you want the city to do something you get a bunch of your friends to show up on the night that will be discussed. That night you dominate the meeting and your issue wins. The next week the old men have to figure out how to pay for it.
A real city console at least has to balance the effects of a tax increase (they might lose their job next election) with the benefits of all their ideas.
The only thing I know of that works is to have such a sparse population that you don't need a government. Of course you also don't have civilization.
Thinking of it like old style town halls are not what I mean. As a new system, where anyone can raise an issue, discuss an issue, and either vote directly or proxy someone they know to vote for them on every issue. (I proxy a teacher that I trust to vote on every education issue in the community). However, if at any time, I can vote for myself. There are no longer representatives, we are all representatives.
However, there will also have to be checks in place to protect the minorities (in a voting sense, not race/religion). As a true democracy can be very dangerous, as the minority is always under represented and ultimately leads to self destruction of the democracy. (...sounds familiar to the situation the US is in? Who will vote out Santa Claus...read, welfare.)
It won't be easy to create. It will probably go through many iterations/pivots/failures, just like anything else that becomes great. But in the end, I think we can get there. Or at least improve the current status quo, which as somebody else mentioned, it's a bad thing to think change is too hard. (Although, more than likely, change will be a generational thing. The people who hold up the current way will have to die and be replaced to someone open to other ideas. Which of course has its pros and cons. We repeat history all the time, despite being well aware of the mistakes of the past.)
I'd be curious to find out at what sizes this breaks down.
Spoken like someone who has never interacted with their representatives on their local council.
I know everyone on my council, 5 of one party and 4 of another, 5 men and 4 women, and they do 15-20 hours of work every week for $50/mo. Most of them are retired because they have to be, but my area is mostly older or retired anyway so at least it's representative. The only possible complaint you could have about them is the municipality is 80% black and only 2 of the 9 members of council are, but that's also representative of who actually runs for election.
If they're corrupt, they're doing it wrong.
I don't know if I'd single them out as particularly corrupt, but they are very frequently at least one of understaffed, underfunded, incompetant, defunct or corrupt.
Whether the municipal governments fail to protect the interests of their constituents because the officials are in bed with some infrastructure corporation or because they're weak enough to get bullied by the corporation isn't really important to this discussion.
I've lived in several areas of my state and have worked with local and county government extensively, and the statement to which I was responding ("City councils' are probably the most corrupt governing bodies today.") is simply not true.
State legislatures are the most corrupt by an impressively wide margin because they're in the sweet spot of plenty of power to cause real damage and not enough real press coverage outside of the political horse race.
There's a bit of confusion here. This is not as much of a state's rights issue as it is a law vs lack of law issue. The court essentially said "make it a federal law, then that trumps state law...but your whims do not".
While I dislike the outcome, I'm not torn; the decision was absolutely correct. If this is something you want congress to address, contact your congressman.
I have no idea where to start even researching this stuff in an efficient manner.
I am not familiar with all the many laws surrounding interstate commerce, but the Feds are given oversight of such, in a broad sense.
I'd start there, with respect to the FCC's jurisdiction.
P.S. If you can buy and sell data processing (programming, analysis, etc., etc.) delivered inter-state and via the Internet -- not to mention physical things a la Amazon et al. -- then, from my perspective, you are looking at interstate commerce.
The big, entrenched ISP's make a lot of money participating in this commerce. They don't escape the resulting regulation.
However, since the FCC controls the airwaves, I could see localities getting started by using a wireless mesh with their help, and then once established branch into fiber.
Exactly what part of that means the FCC has no place in regulating internet access?
> I could see localities getting started by using a wireless mesh with their help
That would be illegal in NC, the law the FCC was challenging explicitly states "it is against the public policy of this State for any unit, department, or agency of the State, or any division or subdivision of a unit, department, or agency of the State to engage directly or indirectly in the sale of goods, wares or merchandise in competition with citizens of the State and Whereas, to protect jobs and to promote investment, it is necessary to ensure that the State does not indirectly subsidize competition with private industry through actions by cities and to ensure that where there is competition between the private sector and the State, directly or through its subdivisions, it exists under a framework that does not discourage private investment and job creation"
The fact that Time Warner wrote the law and got it passed would be hilarious if it wasn't so disgusting.
Allowing a business owned by someone who can regulate / inspect every competitor out of business isn't seen as very fair.
The NC law was very specifically targeted at municipal broadband projects and was effectively written by Time Warner to prevent underserved customers from having another option. It's as simple as that and it's disgusting.
So, you believe that Time Warner was able to influence half the legislature with lobbying? Is there some reporting on what they offered?
Then the residents-of-the-city can vote for the city-as-municipal-corporation to grant that privately-owned, non-municipal corporation the sweetheart local monopoly deal that Time Warner was hoping to force upon them.
It isn't quite as disgusting as failing to provide biologically sterile and non-toxic drinking water to your utility customers, but quality network access is still important economically.
That would be indirectly competing and illegal.
This would probably only work for towns close to the border and at best would demonstrate how stupid the legal landscape for competitive internet access has become.
It would also help to ban municipalities from requiring franchise licenses to offer video service over their wires. At least until cord-cutting is more advanced, double-play packages are critical to the profitability of services like Google Fiber and FiOS. Municipalities tend to impose onerous terms on the acquisition of video licenses which make it unattractive for competitors to enter a market.
It's not like competition doesn't exist anywhere. Low-regulation southern cities like Atlanta and Austin are enjoying multiple providers offering gigabit service.[1] The only reason the same isn't happening in New York or San Francisco is the local government.
[1] I mean, just look at the map of Google Fiber cities: https://fiber.google.com/newcities.
The 'last mile' networks are similar in nature to roadways; a service that is a natural monopoly and best supported through government and local community working together.
Meanwhile, cars (computers) and gas ('long distance' interconnect) are things that best compete on top of that local natural monopoly network.
You should have your choice of ISPs and other data services selling you their content across the local mesh network.
But if, for instance, it becomes difficult/expensive to built electric car recharge stations for some reason and we as a society make a strong shift to electric cars, you want the municipalities to have some way to encourage somebody to make an investment in the infrastructure, and that may not happen without some kind of promise that after they build the infrastructure they can benefit from it (for a while anyway). I know that's not a great example, but hopefully you can abstract to my point, that is, that there could be some reason in the future to want to allow the deals. Just have them expire.
[1] In theory existing ones were grandfathered in, but they were of a fixed-term (e.g. 10 years), and exclusivity was lost when the original deal expired.
One law for one, one law for everyone else doesn't appear to be the way the law is supposed to work, I can't fathom why it works this way in this case.
There are a number of telecom companies. Not a lot, but we're certainly not talking about the situation with Standard Oil. At a macro level, there's clearly competition: Comcast, Verizon, Google Fiber, etc. No one can deny that, and that's the level where legislators interact with them. But the problem is that consumers don't actually get to choose between companies; they're largely locked into a particular provider based on geographic location. Franchise agreements, high barriers to entry, etc. all see to that.
That's not really an antitrust issue. Utilities, by definition, are functional monopolies. The problem is that broadband is a utility, but a unique one. You can't really differentiate water service or sewage, for instance. But there can be a drastic difference between ISPs and the type of broadband service they provide. At the same time, it's still subject to the same economic factors as any other utility service, making new competition very unlikely. So you wind up with a very dysfunctional market, despite the competition at the macro level.
It's a somewhat counterintuitive distinction, but what you wind up with is basically an industry with multiple competitors that don't actually compete with one another at the consumer level because they're just like any other utility at that level. You don't get a choice in water providers, sewage, etc. Everyone is locked within the confines of their particular borders, and while those borders can and do shift, when they do it's more like the trading of pieces of territory than encroachment via competition. And all of this is made worse by the sheer scale of the barriers to entry. As Verizon FiOS and Google Fiber both learned, fiber rollouts are a capital-intensive proposition.
.. you don't believe anything should be done about it. Local monopolies were created because local and state politicians were paid to make it that way. The FCC was acting as one of the few groups that would be funded and large enough to stand up to that, but the laws of the land are for the corporations not the people. Here you are praising a move to keep it that way.
All in all, TFA's title seems more informative.
The states-rights argument might swing more weight if each state had its own commercial broadband providers, rather than national companies locking up the market state by state.
That's not what the court found. The Sixth Circuit did not say that the subject matter here was not interstate commerce that Congress could regulate and preempt state law by regulating. They said that Congress had not acted to preempt these particular state laws, and that the regulatory authority the FCC had under laws passed by Congress did not extend to preempting the particular state laws in question.
There is a vast difference between finding that an action is not within the Article I powers of Congress and finding that an executive action, whether or not authorizing it would be within the Article I powers of Congress, is not, in fact, authorized by Congress. This ruling found the latter, not the former.
Now, I'm not saying that I agree with the finding, but it doesn't help to mischaracterize it.
Just, considering the democratic ideal of the government serving the people, I struggle to come up with a plausible justification that the states might give for denying municipalities and I'm hoping someone more familiar with the matter here at HN can shed some light.
I noticed that line of argument seemed more common when I lived in the south (NC).
[0]: https://en.wikipedia.org/wiki/Blue_laws_in_the_United_States
I can come up with a plausible explanation for that since it does seem to serve the will of a lot of people who also happen to be people that vote heavily -- especially considering the time period the law was made.
For banning municipal broadband, though? I can't think of any way that serves any significant bloc of people in the state.
In terms of politics, cable providers have lobbied to carve out a legal monopoly for themselves, and so, in effect we see the same effect from the private company.
The answer, in my opinion, is to have the municipalities run empty conduit to every home, and allow any private company to lay their cable there. This would allow more competition for electricity, cable, and potentially other utilities.
Fixed that for you