FTTH Con: Muni broadband advocate sees ‘rosy picture’

LAS VEGAS--After years of fighting to protect the rights of municipalities to provide broadband and other telecom services, Jim Baller, an attorney with the Baller-Herbst Law Group, has to admit he’s breathing a lot easier these days.

“If you’d have asked me at the end of 2004 if we could possibly be at this point, I’d have said that’s a very rosy picture,” Baller told an audience at the Fiber-to-the-Home Conference in Las Vegas this week. “But that’s where we are.”

Of the 14 states that have some type of restriction on municipal telecom, about half apply to broadband. And while Baller’s crowd has battled all 14 states in recent years, only one has enacted a significant new barrier to muni broadband, he said. Meanwhile, the city of Truckee Donner, Calif., won a legal battle. The city of Portland defeated Qwest Communications in court. And plans to saddle muni providers in Ohio with new connection requirements were quashed.

“There were more fights this year, but nothing negative happened,” Baller said. “In this environment, it would be politically difficult for a state to enact a new significant barrier to entry.”

On the other hand, he added, “There’s too many [barriers] out there. There shouldn’t be any.”

Legal wrangling between states and municipalities on this issue led to a 2004 U.S. Supreme Court ruling that dealt a blow to cities by leaving the door open for states to enact restrictions. Since then, cities and utilities have battled state legislators who are often backed by incumbent phone and cable providers.

Muni broadband proponents mobilized after the state of Pennsylvania passed a law in late 2004 severely limiting the ability of municipalities to meddle with broadband. That law “shocked the country,” Baller said, “instill[ing] fear and revulsion.” And it allowed Baller and his ilk to rally support from a broad audience, including consumer groups, libraries, schools and universities, in addition to groups such as the American Public Power Association and the Fiber-to-the-Home Council.

All these battles may have even changed incumbent providers’ attitudes as well. AT&T, for example, has participated in two municipal broadband projects so far, Baller said.

“After the Pennsylvania debacle, Verizon [reconsidered] its strategy,” said Michael McKeehan, Verizon Communications’ director of Internet and technology policy. “We’re not fundamentally opposed to muni broadband, given a couple caveats.” It should be applied only “if the market fails somewhere,” he said. “If the local provider either isn’t going to offer broadband or isn’t going to offer it on a timeline a city is happy with.”

Federal bills with various provisions regarding muni broadband have scattered throughout Congress recently, Baller said. Some bills even seek to undo or mitigate state restrictions. But it’s unknown whether or when Congress will take decisive action on municipal broadband.

According to Render Vanderslice & Associates, municipalities and utilities serve 7% of the fiber-to-the-premises subscribers in North America today. And according to Baller, interest in municipal wireless projects “is spreading like kudzu across the country.”