Jeff Stricker · March 2013
81 GEO. WASH. L. REV. 589 (2013)

One of Congress’s purposes in passing the Telecommunications Act of 1996 was to encourage the widespread deployment of broadband Internet. As municipalities began constructing their own broadband networks, private sector Internet service providers, alarmed at the prospect of competing with these public networks, pushed back with lobbying campaigns encouraging states to enact laws prohibiting these municipal networks. This, in turn, slowed broadband deployment, particularly in areas that private providers believed to be unprofitable (and thus left unserved). Municipalities challenged these laws under the Telecommunications Act, arguing that the Act preempted the state laws, but the Supreme Court in Nixon v. Missouri Municipal League, 541 U.S. 125 (2004), upheld the state prohibitions, clearing the way for even more states to adopt such prohibitions. Today, twenty-one states have statutes restricting municipal networks, leaving many Americans without affordable broadband Internet access.

This Note argues that Congress should amend the Telecommunications Act to overcome Missouri Municipal League and preempt state laws restricting municipal broadband network deployment. Through preemption, state legislatures will be forced to revise or repeal overly restrictive statutes, paving the way for more reasonable restrictions that balance the importance of affordable broadband with the need to protect private companies from direct competition with publicly funded entities. This Note next analyzes selected provisions of current state laws and proposes either to eliminate them as overly restrictive, modify them to be less restrictive, or retain them. The result is a framework of a balanced state law that protects private sector interests while also encouraging broadband deployment.