Friend of telecoms
Less than four months after Mansfield was elected to the North Carolina General Assembly in 2010, Rep. Marilyn Avila, a Wake County Republican, introduced a bill that would prevent cities from building or expanding existing broadband networks, by requiring them to follow prescribed and time-consuming procedures and financial requirements. The bill became law in May 2011.
Avila’s colleagues in the General Assembly describe her as a friend of telecommunications companies. Before heading to Raleigh in 2006, Avila worked for the John Locke Foundation, a free-market public policy think tank founded by Art Pope, who while a college student also helped establish the Libertarian Party of North Carolina.
Pope, who amassed a fortune in the family retail business, is a prolific donor and is described as a close ally of Charles and David Koch. He is a former board member of the Kochs’ Americans for Prosperity.
A few months after her bill passed, Avila spoke at the 2011 meeting of the North Carolina Cable Telecommunications Association in Asheville, in the scenic Great Smoky Mountains, where Avila’s and her husband’s expenses of $1,045 were paid for by the association.
In the 2012 election cycle, when her bill passed, Avila’s campaign received $9,000 from CenturyLink, AT&T and Time Warner Cable, four times more than the previous cycle, according to the National Institute on Money in State Politics. Fayetteville’s Internet provider Time Warner Cable gave $6,000 of the total, 12 times the $500 the company gave in the previous cycle. Avila was among the five North Carolina lawmakers who received the most from the telecommunications industry that year.
Avila didn’t return phone calls or emails asking for comment.
‘We should be so powerful…’
Numerous lawmakers and lobbyists said they suspect the bill was heavily influenced by Time Warner Cable, if not written by the company. Gary Matz, senior vice president of government relations for Time Warner Cable, laughed at the accusation.
“We should be so powerful,” Matz said. “It was a bill that had bipartisan support. It was certainly a bipartisan effort.”
When Avila’s bill hit the Senate floor, Mansfield tried to exempt Fayetteville from the requirements. Colleagues had already been able get exclusions for four other North Carolina cities that operated their own networks: Wilson, Salisbury, Davidson and Mooresville. Mansfield knew he had the votes to pass his amendment.
But Sen. Thomas Apodaca, a Republican from Hendersonville, in the western part of the state, used a procedural maneuver to block Mansfield’s proposal, introducing an amendment of his own that would prohibit city-owned cable companies from providing adult entertainment channels. If it passed, it would kill Mansfield’s effort. But a vote against it was a vote for pornography.
The debate turned nasty when Apodaca suggested that if Mansfield, a part-time Baptist pastor, didn’t support his proposal, that perhaps meant he wanted his young daughters to have access to pornography, Mansfield recalls. The statement surprised lawmakers so much they called a recess. Apodaca eventually apologized, but Mansfield was still stung.
“I told him ‘I know how this works, but your light is a little bit dimmer with me now,’” Mansfield said.
Apodaca and the telecom companies won. Fayetteville wouldn’t be offering residents access to its network.
Apodaca, chairman of the powerful Rules Committee, is a big beneficiary of telecommunications company largesse. He received $16,750 from AT&T, CenturyLink, Time Warner Cable and Verizon Communications Inc. in the 2012 election cycle, the third-largest amount among North Carolina lawmakers, according to the National Institute on Money in State Politics. Since he was first elected in 2002, Apodaca has received $62,000 from the telecommunications carriers, the second most of any lawmaker in North Carolina.
Apodaca didn’t return phone calls and emails asking for comment.
For Steven Blanchard, chief executive of Fayetteville’s Public Works Commission, prohibiting Fayetteville residents from using the fiber network that’s already there doesn’t make sense.
“Why shouldn’t we be allowed to sell fiber if it runs by everyone’s house?” Blanchard said. “They are already paying for the fiber to be there, so why not allow them use it for telephone and Internet and capture back a lot of the cost they put in to have it there?”
Time Warner Cable said this summer that Fayetteville is on a short list to get faster Internet next year.
Seeking federal help
In spite of the laws, cities like Tullahoma and Fayetteville may end up being able to expand their networks.
On July 24, the Electric Power Board in Chattanooga and the city of Wilson, which both operate fiber networks, petitioned the FCC to pre-empt their respective state laws that restrict them from expanding service.
Both cities said towns and businesses outside of their areas have asked for Internet service. Chattanooga said cities wanted it for economic development and to replace dial-up modems.
Wilson, which serves six counties with electricity but provides broadband services to just one, said it “stands ready, willing and eager to expand the scope of its broadband capabilities into neighboring communities.”
FCC Chairman Tom Wheeler has vowed numerous times, including during testimony to Congress, that he would pre-empt the state laws if the agency is asked to do so. Rep. Marsha Blackburn, a Republican who represents a district just west of Tullahoma, inserted an amendment in the fiscal 2015 funding bill for the FCC that would prevent the agency from pre-empting state broadband laws, saying to do so would “trample on our state rights.” Some Democratic lawmakers have come out to support the pre-emption.
The National Conference of State Legislatures, a nongovernmental organization that promotes the interests of states in Congress, has threatened to sue the FCC if it voids the state laws.
The outcome may, however, come down to a footnote. In January, in a federal appeals court ruling on a related issue, U.S. Circuit Judge Laurence Silberman laid out in a minority opinion the FCC’s regulatory powers in deploying broadband as stated in the Telecommunications Act of 1996.
Silberman, who was appointed by President Ronald Reagan, noted that Congress granted the FCC the ability to “remove barriers to infrastructure investment.” In a footnote, he wrote that a definitive example of such a barrier “would be state laws that prohibit municipalities from creating their own broadband infrastructure to compete against private companies.”
The footnote “is a powerful argument” for the FCC to block the state laws, said Blair Levin, a former lawyer who oversaw the FCC’s National Broadband Plan in 2010, which laid out a road map for providing universal Internet access. The policy goal as outlined in the Telecommunications Act has always been to provide “abundant bandwidth,” he said.
If there were no restrictions, “it is very likely new networks creating such abundance would be deployed,” Levin said.
The FCC has set Aug. 29 as the deadline for comments on Chattanooga’s and Wilson’s petitions, and Sept. 29 as the deadline for replies to comments. No date has been set for when the five commissioners will vote.
In the meantime, the tide in states may be turning against the telecommunications giants. Kansas and Utah, where Republicans control the legislatures, defeated bills this year that would have restricted or banned municipal broadband networks. Republican-led Georgia defeated similar bills in 2012 and 2013.
What it comes down to for communities is self-determination, and even self-preservation, said Baller, the attorney representing Chattanooga and Wilson. He, said officials want to provide fast Internet to their communities for the same reasons they provided electricity a century ago.
“Local officials want to give their businesses, institutions and residents, particularly their kids, a reason to remain in and thrive in the community,” he said.
