July 29th, 2005
Harold Feld has read the Ensign bill and he doesn't like what he sees
Here’s Harold Feld’s take on Sen. Ensign’s Broadband Investment and Consumer Choice Act. While there are a few positives, the list of negatives is very long. They all boil down to this: “What the act generally does is strip the states and local governments of any regulatory power over telecom and cable providers. Local franchising authorities just vanish. State commissions become enforcement arms of the FCC. The FCC, however, is likewise limited to a few very limited regulatory functions.”
Specifically, Feld writes, the bill prevents local governments from building their own competing networks, an approach based on the Pennsylvania law that hemmed in Philadelphia’s efforts to build city-wide Wi-Fi.
The Act basically adopts the “Pennsylvania Plan.� If a local or state government wants to build a network, it must issue a request for proposal (RFP) to see if any private company wants to build the network instead. Only if no private provider offers to build a “comparable� network can the state or local government build and operate the network. Any system in existence at the time of the act is grandfathered, but only if it does not expand its network or type of service offered. If you are on the wrong side of the street when the statute passes, too bad for you.
I find this last (Section 15 of the Act) particularly outrageous in light of the fact that more than ten states have explicitly considered and rejected proposals and limitations like this. Most recently, when the citizens of Lafayette had a referendum to decide whether to build a public network despite the availability of both Bell South and Cox, 62% of the voters approved building a public network.
So, if local citizens want to spend their local tax dollars on these projects (whether wisely or foolishly) and the state legislatures, after hearing from the voters, decide not to limit these community internet projects, why is Congress getting invovled?
According to the bill, we need to protect the private monopoly providers from “undue government competitionâ€? (that’s the name of Section 15(a), “Protection Against Undue Government Competition With the Private Sectorâ€?).
