By Alexandra Ladwig*
In Packingham v. North Carolina, Justice Kennedy described the Internet as “the modern public square,” declaring Internet access to be a constitutional right. [i] The case addressed the First Amendment issues of denying convicted sex offenders access to social media. Observers have begun to speculate what further implications the case might have for Internet access. While the Packingham decision outlined the right to Internet access, the delivery system owed to Americans remains ambiguous. In a country where thirty-nine percent of the rural population, or roughly 23 million people, live without access to high-speed broadband Internet[ii], it is worth exploring how broadly the right to Internet access extends. Though Packingham likely cannot be used to require large telecom companies to install broadband internet in rural communities, perhaps its emphasis on the right to internet access can be used as momentum to lift regulations currently preventing rural communities from building their own Internet Service Providers (ISPs). This blog will examine whether rural Americans have a legal claim to high-speed Internet, and, if so, whom such a claim might implicate.
The demand for rural broadband access has been growing in recent years, and the federal government has taken notice.[iii] The day after President Trump’s inauguration, over seventy members of Congress signed a letter urging the new President to include rural broadband services in his infrastructure investment plans.[iv] The letter emphasized the importance of broadband access in bridging the urban and rural divide in America by highlighting the economic and technological opportunities broadband access provides.[v] Less than a year later, President Trump issued two executive orders addressing rural broadband access.[vi] Yet it remains hard for many rural Americans to see reliable Internet access in their future for several reasons.
The issue of rural Internet access is rooted in complex state regulatory schemes that disincentivize rural broadband development. The two main options that rural communities have for acquiring broadband access are (1) gaining access through an existing ISP, usually a large national telecom corporation, or (2) building their own municipal ISP.[vii] While either option seems achievable in theory, there are economic roadblocks in the way of the first option and regulatory roadblocks hampering the second.[viii] The first option requires installation of expensive fiber networks throughout rural areas[ix]. These networks often do not attract sufficient numbers of customers to offset the cost of installation, meaning that large telecommunications companies lack incentive to develop them[x]. The second option, municipally-owned ISPs, are attractive in theory but can be virtually impossible in the face of complex state laws restricting the development of such ISPs[xi]. Many rural communities thus remain stuck in a regulatory climate that renders access to broadband virtually impossible.
Two legal strategies have developed to address the two main issues preventing broadband development. First, states have initiated lawsuits against companies that refuse to provide broadband services.[xii] In 2017, the New York City filed a lawsuit in the New York Supreme Court against Verizon for failing to provide fiber internet to almost a million residents in accordance with a 2008 contract.[xiii] If this New York suit is successful, it could encourage other municipalities to hold telecom companies responsible for their contractual broadband obligations.
Second, municipalities facing restrictive state laws against developing their own broadband networks have attempted to seek relief from the Federal Communications Commission (FCC).[xiv] In 2015, the FCC voted to preempt state laws in Tennessee and North Carolina that limited municipalities from developing their own community broadband providers.[xv] Claiming it had authority to preempt state laws that conflict with an agency’s regulations or policies as long as the agency is acting within the scope of its authority, the FCC found a conflict between FCC’s authority under Section 706 of the Telecommunications Act of 1996 and provisions of both Tennessee and North Carolina law related to broadband service.[xvi] The FCC thus decided it had the power to preempt Tennessee and North Carolina’s restrictive state laws, allowing the cities of Chattanooga, Tennessee and Wilson, North Carolina to continue facilitating community broadband deployment.[xvii] However, the FCC’s order was challenged by both states and reversed by a three-judge panel of the Sixth Circuit, holding that Section 706 of the Telecommunications Act of 1996 contained no requisite clear statement allowing the FCC to preempt a state’s authority in the domain of broadband decision-making.[xviii]
The Sixth Circuit’s ruling constrained the FCC’s power to ease the regulatory regime for municipalities seeking to develop their own community broadband providers. However, the decision leaves room for appeal to the Supreme Court or for Congressional action to clarify the FCC’s authority to regulate broadband deployment. This may be a simpler path than initiating legal claims against telecommunications providers such as in the New York case, as rural communities don’t have the structured contracts with large broadband providers that New York City does. Additionally, the federal government cannot require telecommunications providers to install high speed internet delivery systems in rural areas, especially when companies are likely to lose money doing so.[xix]
Access to reliable broadband Internet has widespread implications for development in rural America. The Internet provides education, job training, communication, and news. It’s increasingly being used to provide medical services[xx], first responder communication[xxi], and is vital to the development of “smart city” technology such as autonomous vehicles.[xxii] With federal subsidies falling short of their goals for rural broadband deployment[xxiii], pursuing legal remedies that lift restrictions on broadband deployment may be the next big step for rural communities. Rural broadband is a key piece to bridging the urban-rural divide in America, and legal remedies may be the key to putting that piece in place.
*Alexandra Ladwig is a Junior Editor on MJEAL. She can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Packingham v. North Carolina, 137 S.Ct. 1730 (2017).
[ii] Fed. Commc’ns. Comm’n 2016 Broadband Progress Report, https://www.fcc.gov/reports-research/reports/broadband-progress-reports/2016-broadband-progress-report.
[iii] What the President’s Infrastructure Plan Will Do to Expand Rural Broadband Access, White House Statements & Releases (Feb. 23, 2018) https://www.whitehouse.gov/briefings-statements/presidents-infrastructure-plan-will-expand-rural-broadband-access/.
[iv]Jan. 30, 2017 Congressional Letter to President Trump, https://welch.house.gov/sites/welch.house.gov/files/Telecom%202017.01.30%20Letter%20to%20Pres%20Trump%20re.%20broadband_0.pdf.
[vi] Presidential Exec. Order on Streamlining and Expediting Requests to Locate Broadband Facilities in Rural Am. (Jan. 8, 2018) https://www.whitehouse.gov/presidential-actions/presidential-executive-order-streamlining-expediting-requests-locate-broadband-facilities-rural-america/; Presidential Memorandum for the Sec’y of the Interior (Jan. 8, 2018) https://www.whitehouse.gov/presidential-actions/presidential-memorandum-secretary-interior/.
[vii] See generally Benny Becker, Rural Cmtys. Take Broadband Into Their Own Hands, National Public Radio (Mar. 3, 2018) https://www.npr.org/2018/03/03/590546371/rural-communities-take-broadband-into-their-own-hands.
[viii] Trump Signs Two Rural Broadband Exec. Orders That Will Barely Move the Needle, Vice News (Jan. 10, 2018) https://motherboard.vice.com/en_us/article/7xeenx/trump-rural-broadband-executive-orders.
[xi] Craig J. Settles, How to Navigate, Mitigate or Eliminate the Impacts of State Restrictions on Public Broadband, CJ Speaks (Jan. 2015), http://cjspeaks.com/wp/wp-content/uploads/2015/01/Snapshot-1-15.pdf.
[xii] See Patrick McGeehan, New York City Sues Verizon, Claiming Broken Promises of FiOs Coverage, New York Times (Mar. 13, 2017), https://www.nytimes.com/2017/03/13/nyregion/ny-sues-verizon-fios.html?_r=0.
[xiv] FCC Grants Petitions to Preempt State Laws Restricting Cmty. Broadband in N.C., Tenn., Fed. Comm. Comm’n (Feb. 26, 2015), https://apps.fcc.gov/edocs_public/attachmatch/DOC-332255A1.pdf.
[xviii] State of Tenn., et. al. v. FCC, et al., 832 F.3d 597, 600 (6th Cir. 2016).
[xix] Trump Signs Two Rural Broadband Exec. Orders That Will Barely Move the Needle, Vice News (Jan. 10, 2018) https://motherboard.vice.com/en_us/article/7xeenx/trump-rural-broadband-executive-orders.
[xx] Christina Susanto, Net Neutrality and a Fast Lane for Health, 37 J. Legal Med. 105, 108 (2017).
[xxi] Stephen Klein, Rural Response: The Need for an Effective Rural FirstNet Network, 69 Fed. Comm. L.J. 53 (2017).
[xxii] Driverless Cars Need Just One Thing: Futuristic Roads, Wired.Com (Oct. 10, 2016), https://www.wired.com/2016/10/driverless-cars-need-just-one-thing-futuristic-roads/.
[xxiii] See Blair Levin and Carol Mattey, In Infrastructure Plan, A Big Opening for Rural Broadband, Brookings (Feb. 13, 2017), https://www.brookings.edu/blog/the-avenue/2017/02/13/in-infrastructure-plan-a-big-opening-for-rural-broadband/.