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Sixth Circuit Court of Appeals Reverses FCC Rule Allowing Public Broadband Expansion

6th CircuitA federal appeals court has reversed an effort by the Federal Communications Commission to pre-empt state laws restricting municipal broadband expansion in Tennessee and North Carolina, ruling the FCC exceeded its authority by interfering with both states’ rights to define the boundaries where the community broadband networks can and cannot operate.

In a near-unanimous decision (with some minor dissent from one judge), judges from the Sixth Circuit Court of Appeals found the FCC exceeded their authority.

“The FCC order essentially serves to re-allocate decision-making power between the states and their municipalities,” the court ruled. “This is shown by the fact that no federal statute or FCC regulation requires the municipalities to expand or otherwise to act in contravention of the preempted state statutory provisions. This preemption by the FCC of the allocation of power between a state and its subdivisions requires at least a clear statement in the authorizing federal legislation. The FCC relies upon § 706 of the Telecommunications Act of 1996 for the authority to preempt in this case, but that statute falls far short of such a clear statement. The preemption order must accordingly be reversed.”

In other words, the court ruled that the FCC’s belief that Section 706 of the Telecommunications Act of 1996 allowed it to pre-empt state broadband laws goes too far. The judges opined Congress would have to rewrite the law to clearly state it was acceptable for the federal branch of government to overrule how a community or state decides to draw boundaries for public utilities.

EPB is the municipal utility in Chattanooga, Tenn.

EPB is the municipal utility in Chattanooga, Tenn.

The ruling will have an immediate impact on plans by municipal utility EPB in Chattanooga and city-owned provider Greenlight in Wilson, N.C., to expand service outside of their respective service areas. EPB has been working inside the Tennessee legislature to overturn or change the current broadband law but has been unsuccessful so far. Comcast and AT&T have lobbied the Tennessee legislature to keep municipal competitors from expanding, even where neither company offers service.

“Ultimately, Tennessee’s broadband gap is a problem for Tennesseans, and we need a Tennessee solution,” said David Wade, president of EPB. “We will continue to work with the growing number of state legislators and grassroots citizens interested in removing the barriers that prevent EPB and other municipal providers from serving our neighbors in surrounding areas who have little or no access to broadband. We are further encouraged by Commissioner Randy Boyd’s interest in addressing the lack of broadband in rural areas. As the head of the Tennessee Department of Economic and Community Development, he is especially well positioned to join with state lawmakers in addressing this challenge on behalf of Tennesseans.”

Greenlight announces gigabit service for Wilson, N.C.

Greenlight announces gigabit service for Wilson, N.C.

North Carolina’s law was effectively drafted by Time Warner Cable, who shepherded the bill through the Republican-controlled state legislature, making huge political campaign contributions along the way, eventually winning enough votes to see the bill become law.

The ruling is a serious blow to FCC chairman Thomas Wheeler, who made municipal broadband expansion one of his active agenda items at the FCC. Wheeler believed the two state laws were not supposed to inhibit rural broadband expansion. Critics of the laws contend they were written and lobbied for by the same incumbent cable and phone companies that could eventually face competition from public broadband networks.

“Let’s be clear: industry-backed state laws to block municipal broadband only exist because pliant legislators are listening to their Big Cable and Big Telecom paymasters,” said Michael Copps, a former FCC commissioner. “This decision does not benefit our broadband nation.”

Wheeler

Wheeler

Wheeler tacitly agreed, saying today’s decision “appears to halt the promise of jobs, investment and opportunity that community broadband has provided in Tennessee and North Carolina.”

“[Since 2015], over 50 communities have taken steps to build their own bridges across the digital divide,” Wheeler said in written comments. “The efforts of communities wanting better broadband should not be thwarted by the political power of those who, by protecting their monopoly, have failed to deliver acceptable service at an acceptable price.”

The ruling can be appealed to the U.S. Supreme Court, and the FCC has an excellent chance of getting the high court to overturn today’s decision. Rulings issued by the Sixth Circuit were reversed by the Supreme Court 24 out of the 25 times they were reviewed in the five annual terms starting in October 2008 and ending in June 2013 — the highest number of any federal appellate court during that time period.

Broadband activists can also return to the two state legislatures and urge that the broadband laws be modified or repealed. Wheeler seems ready to join the fight.

“Should states seek to repeal their anti-competitive broadband statutes, I will be happy to testify on behalf of better broadband and consumer choice,” Wheeler said. “Should states seek to limit the right of people to act for better broadband, I will be happy to testify on behalf of consumer choice.”

Opponent of EPB Fiber Expansion: Get ‘Innovative’ Satellite Internet Instead

Cleveland's monument in the downtown district. (Image: City of Cleveland)

Cleveland’s monument in the downtown district. (Image: City of Cleveland)

AT&T, Comcast, and Charter have surrounded the city of Cleveland, Tenn., (population 42,774) for more than 20 years, yet after all that time, there are still many homes in the area that have no better than dial-up Internet access..

An effort to extend municipal utility EPB’s fiber to the home service into the community just northeast of Chattanooga on Interstate 75, has run into organized political opposition campaign, part-sponsored by two of the three communications companies serving the area.

Tennessee state Reps. Dan Howell and Kevin Brooks, both Cleveland-area Republicans, understand the implications. With AT&T, Comcast, and Charter resolute about not expanding their coverage areas anytime soon, the only chance Cleveland has of winning world-class broadband anytime in the reasonable future is through EPB, which has already offered to extend service to at least 1,000 customers in rural Bradley County in as little as three months. Most of those customers now rely on dial-up Internet services, because no broadband is available. Reps. Howell and Brooks are trying to get the the red tape out of the way so EPB can proceed, but the Tennessee legislature hasn’t budged.

EPB provides municipal power, broadband, television, and telephone service for residents in Chattanooga, Tennessee

EPB provides municipal power, broadband, television, and telephone service for residents in Chattanooga, Tennessee

There is a substantial difference between 30kbps dial-up and 100Mbps — one of the “budget” Internet tiers available from EPB. But some Tennessee lawmakers and corporate-backed special interest groups don’t care. To them, stopping public broadband expansion is a bigger priority, and they have attempted to stall, block, or prohibit municipal broadband, just to protect the current phone and cable companies that are among their generous contributors.

In 2010, Chattanooga became the first in America to enjoy gigabit residential broadband speed not because of AT&T, Comcast, or Charter, but because of the publicly owned electric company, EPB. So what’s the problem with that? The fact EPB spent $320 million on the fiber optic network — about $100 million of that coming from a federal grant — keeps some conservatives, corporate executives, and telecom shareholders up at night. They object to the public funding of broadband, calling it unfair competition for the two incumbent cable companies and one phone company, which have their own “privately funded” networks.

Republican Rep. Mike Carter, who serves Ooltewah, thinks that’s a lot of nonsense. He notes AT&T and other providers already receive government funding to service outlying areas that no other providers dare to tread for a lack of return on their investment.

cleveland_tn“[What] convinces me to back expansion of the EPB of Chattanooga is the fact that they received $111 million in stimulus funds, and in the next five years AT&T alone will receive $156 million of your money [in government funding] assessed every month on your bill to provide 10/4-gigabit service in those areas,” Carter explained to the Chattanooga Times-Free Press. “If the EPB’s $111 million matching grant somehow disqualifies those benefits going to my constituents, how do I explain to them that AT&T is receiving non-matching funds?”

“The issue then became, if it is necessary to create the world’s fastest Internet system, why would EPB not offer that for economic growth in its service area?” Carter continued. ” After I heard the story of the [gig’s] creation and realized that the money had already been spent, I asked myself if I would allow a firmly held principle of no competition with private enterprise by government to deny my constituents and neighbors the incredible benefits.”

Justin Owen, president and CEO of the Beacon Center of Tennessee, is dismissive of Carter’s willingness to bend his principles. In his view, those without Internet access have other options instead of getting EPB Fiber on the public dime.

Owen

Owen

“You can get satellite Internet,” said Owen, who added that governments that invest in fiber technology could be “left behind by disruptive innovation,” which in his mind could be satellite Internet. Satellite customers would disagree.

“Horrible, horrible, horrible, and more horrible,” wrote Trey from another Cleveland — this time in Texas. “Speeds are consistently less than 2Mbps and they advertise up to 12. Try a cell phone booster and use that before resorting to satellite Internet.”

Hundreds of customers shared similar stories about their experience with satellite Internet, and they don’t believe it will be disruptive to anything except their bank account.

Owen and his group have not revealed many details about where its funding comes from, but the group is a member of the State Policy Network, which receives financial support from AT&T, Time Warner Cable, Verizon and Comcast. The group’s former leader, Drew Johnson, was also a former opinion page columnist at the Times-Free Press and used column space to criticize EPB and other issues that ran contrary to AT&T’s agenda in Tennessee.

Despite support from the Chattanooga area’s Republican delegation, many legislators from outside the area remain firmly in support of the telecom companies and their wish to limit or destroy community broadband projects like EPB, claiming they are redundant or are based on faulty business plans likely to fail. But while Comcast used to dismiss EPB’s gigabit service as unnecessary and AT&T considered gigabit speeds overkill, both companies are now racing to deploy their own gigabit networks in Chattanooga to compete.

The residents of Cleveland without broadband today probably won’t have it tomorrow or anytime soon. Many are hoping the Tennessee legislature will relent and let EPB solve their broadband issues once and for all. Cleveland resident Aaron Alldaffer is trying to help gin up interest in a renewed legislative push for EPB Fiber expansion with a Change.org petition.

The BBC World Service Global Business program visited Chattanooga in May 2016 to explore EPB Fiber and discuss its implications. (29 minutes)

You must remain on this page to hear the clip, or you can download the clip and listen later.

Attacks on Tennessee’s EPB Municipal Broadband Fall Flat in Light of Facts

latinos for tnThe worst enemy of some advocacy groups writing guest editorial hit pieces against municipal broadband is: facts.

Raul Lopez is the founder and executive director for Latinos for Tennessee, a 501C advocacy group that reported $0 in assets, $0 in income, and is not required to file a Form 990 with the Internal Revenue Service as of 2014. Lopez claims the group is dedicated to providing “Latinos in Tennessee with information and resources grounded on faith, family and freedom.”

But his views on telecom issues are grounded in AT&T and Comcast’s tiresome and false talking points about publicly owned broadband. His “opinion piece” in the Knoxville News Sentinel was almost entirely fact-free:

It is not the role of the government to use taxpayer resources to compete with private industry. Government is highly inefficient — usually creating an inferior product at a higher price — and is always slower to respond to market changes. Do we really want government providing our Internet service? Government-run health care hasn’t worked so well, so why would we promote government-run Internet?

Phillip Dampier: Corporate talking point nonsense regurgitated by Mr. Lopez isn't for the good of anyone.

Phillip Dampier: Corporate talking point nonsense regurgitated by Mr. Lopez isn’t for the good of anyone.

Lopez’s claim that only private providers are good at identifying what customers want falls to pieces when we’re talking about AT&T and Comcast. Public utility EPB was the first to deliver gigabit fiber to the home service in Chattanooga, first to deliver honest everyday pricing, still offers unlimited service without data caps and usage billing that customers despise, and has a customer approval and reliability rating Comcast and AT&T can only dream about.

Do the people of Chattanooga want “the government” (EPB is actually a public utility) to provide Internet service? Apparently so. Last fall, EPB achieved the status of being the #1 telecom provider in Chattanooga, with nearly half of all households EPB serves signed up for at least one EPB service — TV, broadband, or phone service. Comcast used to be #1 until real competition arrived. That “paragon of virtue’s” biggest private sector innovation of late? Rolling out its 300GB usage cap (with overlimit fees) in Chattanooga. That’s the same cap that inspired more than 13,000 Americans to file written complaints with the FCC about Comcast’s broadband pricing practices. EPB advertises no such data caps and has delivered the service residents actually want. Lopez calls that “hurting competition in our state and putting vital services at risk.”

Remarkably, other so-called “small government” advocates (usually well-funded by the telecom industry) immediately began beating a drum for Big Government protectionism to stop EPB by pushing for a state law to ban or restrict publicly owned networks.

Lopez appears to be on board:

Our Legislature considered a bill this session that would repeal a state municipal broadband law that prohibits government-owned networks from expanding across their municipal borders. Thankfully, it failed in the House Business and Utilities Subcommittee, but it will undoubtedly be back again in future legislative sessions. The legislation is troubling because it will harm taxpayers and stifle private-sector competition and innovation.

Or more accurately, it will make sure Comcast and AT&T can ram usage caps and higher prices for worse service down the throats of Tennessee customers.

epb broadband prices

EPB’s broadband pricing. Higher discounts possible with bundling.

Lopez also plays fast and loose with the truth suggesting the Obama Administration handed EPB a $111.7 million federal grant to compete with Comcast and AT&T. In reality, that grant was for EPB to build a smart grid for its electricity network. That fiber-based grid is estimated to have avoided 124.7 million customer minutes of interruptions by better detection of power faults and better methods of rerouting power to restore service more quickly than in the past.

EPB provides municipal power, broadband, television, and telephone service for residents in Chattanooga, Tennessee

EPB provides municipal power, broadband, television, and telephone service for residents in Chattanooga, Tennessee

Public utilities can run smart grids and not sell television, broadband, and phone service, leaving that fiber network underutilized. EPB decided it could put that network to good use, and a recent study by University of Tennessee economist Bento Lobo found EPB’s fiber services helped generate between 2,800 and 5,200 new jobs and added $865.3 million to $1.3 billion to the local economy. That translates into $2,832-$3,762 per Hamilton County resident. That’s quite a return on a $111.7 million investment that was originally intended just to help keep the lights on.

So EPB’s presence in Chattanooga has not harmed taxpayers and has not driven either of its two largest competitors out of the city.

Lopez then wanders into an equally ridiculous premise – that minority communities want mobile Internet access, not the fiber to the home service EPB offers:

Not all consumers access the Internet the same way. According to the Pew Research Center, Hispanics and African-Americans are more likely to rely on mobile broadband than traditional wire-line service. Indeed, minority communities are even more likely than the population as a whole to use their smartphones to apply for jobs online.

[…] Additionally, just like people are getting rid of basic at-home telephone service, Americans, especially minorities, are getting rid of at-home broadband. In 2013, 70 percent of Americans had broadband at home. Just two years later, only 67 percent did. The decline was true across almost the entire demographic board, regardless of race, income category, education level or location. Indeed, in 2013, 16 percent of Hispanics said they relied only on their smartphones for Internet access, and by 2015 that figure was up to 23 percent.

That drop in at-home broadband isn’t because fewer Americans have access to wireless broadband, it’s because more are moving to a wireless-only model. The bureaucracy of government has trouble adapting to changes like these, which is why government-owned broadband systems are often technologically out of date before they’re finished.

But Lopez ignores a key finding of Pew’s research:

In some form, cost is the chief reason that non-adopters cite when permitted to identify more than one reason they do not have a home high-speed subscription. Overall, 66% of non-adopters point toward either the monthly service fee or the cost of the computer as a barrier to adoption.

What community broadband provides communities the big phone and cable companies don't.

So it isn’t that customers want to exclusively access Internet services over a smartphone, they don’t have much of a choice at the prices providers like Comcast and AT&T charge. Wireless-only broadband is also typically usage capped and so expensive that average families with both wired broadband and a smartphone still do most of their data-intensive usage from home or over Wi-Fi to protect their usage allowance.

EPB runs a true fiber to the home network, Comcast runs a hybrid fiber-coax network, and AT&T mostly relies on a hybrid fiber-copper phone wire network. Comcast and AT&T are technically out of date, not EPB.

Not one of Lopez’s arguments has withstood the scrutiny of checking his claims against the facts, and here is another fact-finding failure on his part:

Top EPB officials argue that residents in Bradley County are clambering for EPB-offered Internet service, but the truth is Bradley County is already served by multiple private Internet service providers. Indeed, statewide only 215,000 Tennesseans, or approximately 4 percent, don’t have broadband access. We must find ways to address the needs of those residents, but that’s not what this bill would do. This bill would promote government providers over private providers, harming taxpayers and consumers along the way.

Outlined section shows Bradley County, Tenn., east of Chattanooga.

Outlined section shows Bradley County, Tenn., east of Chattanooga.

The Chattanoogan reported it far differently, talking with residents and local elected officials on the ground in the broadband-challenged county:

The legislation would remove territorial restrictions and provide the clearest path possible for EPB to serve customers and for customers to receive high-speed internet.

State Rep. Dan Howell, the former executive assistant to the county mayor of Bradley County, was in attendance and called broadband a “necessity” as he offered his full support to helping EPB, as did Tennessee State Senator Todd Gardenhire.

“We can finally get something done,” Senator Gardenhire said. “The major carriers, Charter, Comcast and AT&T, have an exclusive right to the area and they haven’t done anything about it.”

So while EPB’s proposed expansion threatened Comcast and AT&T sufficiently to bring out their lobbyists demanding a ban on such expansions in the state legislature, neither company has specific plans to offer service to unserved locations in the area. Only EPB has shown interest in expansion, and without taxpayer funds.

The facts just don’t tell the same story Lopez, AT&T, and Comcast tell and would like you to believe. EPB has demonstrated it is the best provider in Chattanooga, provides service customers want at a fair price, and represents the interests of the community, not Wall Street and investors Comcast and AT&T listen to almost exclusively. Lopez would do a better job for his group’s membership by telling the truth and not redistributing stale, disproven Big Telecom talking points.

Tennessee Waltz: State Legislature + Big Telecom Lobbyists = No Rural Broadband Expansion

lobbyist-cashEntrenched telecom industry lobbyists and a legislature enriched by their campaign contributions chose the interests of AT&T, Comcast, and Charter Communications over the broadband needs of rural Tennessee, killing a municipal broadband expansion bill already scaled down to little more than a demonstration project.

The Tennessee House Business and Utilities Subcommittee voted 5-3 Tuesday to end efforts to bring much-needed Internet access to rural Hamilton and Bradley counties, long ignored or underserved by the state’s dominant telecom companies. Rep. Kevin Brooks’ (R-Cleveland) original bill would have allowed Chattanooga-based EPB and other publicly owned utility services to expand fiber broadband and television service to other electric co-ops around the state.

Realizing his bill would be voted up or down by members of a committee that included one former AT&T executive and others receiving substantial campaign contributions from some of Tennessee’s largest phone and cable companies, he reduced the scale of his own bill to a simple demonstration project serving a limited number of customers.

The bill failed anyway, in a vote that took less than a minute.

The Chattanooga Times Free Press described the scene:

Rep. Marc Gravitt (R-East Ridge) voted for Brooks’ amendment and Rep. Patsy Hazlewood (R-Signal Mountain), a one-time AT&T executive, voting against it.

As Rep. Kent Calfee (R-Kingston), the subcommittee’s chairman, prepared to move on to the next bill, he suddenly realized the original bill remained before the panel.

“I’m sorry,” Calfee, who voted against the amendment, told Brooks as the Cleveland lawmaker turned to leave. “It’s the amendment [that failed]. Is there any need to vote on the bill?”

Brooks replied, “The amendment makes the bill. I’d love a vote on the bill.”

“Sorry about that,” Calfee said.

And that was that.

Residents and business people alike in northern Hamilton and portions of Bradley counties say they either have no service, lousy service or wireless service that makes it very expensive to upload and download documents for work and school.

EPB provides municipal power, broadband, television, and telephone service for residents in Chattanooga, Tennessee

EPB provides municipal power, broadband, television, and telephone service for residents in Chattanooga, Tenn.

“It’s a testament to the power of lobbying against this bill and not listening to our electorate,” Brooks told reporters. “The voice of the people today was not heard. And that’s unfortunate.”

Brooks’ bill did attract considerable interest – from telecom industry lobbyists who flooded the state legislative offices with a mission of killing it. The Tennessee newspaper said a “platoon of lobbyists and executives, including AT&T Tennessee President Joelle Phillips,” poured into the House hearing room or watched on nearby video screens to scrutinize the vote.

“I heard they hired 27 lawyers to fight,” Brooks said.

Rural Tennessee Republicans were disappointed by the outcome, which leaves substantial parts of their districts unwired for broadband.

“[This] was the perfect opportunity for EPB to be a pilot and to prove they can do what they say they can do,” said Rep. Dan Howell (R-Georgetown). “And if they can’t do it, it’s a perfect opportunity to put it to rest forever. They wouldn’t even let us do a pilot to prove that EPB can do what it claimed.”

Brooks

Brooks

Rep. Mike Carter (R-Ooltewah), also has a bill being held up in the legislature that would allow expansion of public broadband with the consent of citizen members of co-ops and elected leaders of the rural utilities.

Carter didn’t seem too surprised municipal broadband bills like his were being delayed or killed in the state legislature at the behest of AT&T and other companies.

“You just don’t go up against Goliath unless you have your sling and five stones. I just didn’t have my five stones today,” Carter said.

AT&T declared the bill was flawed, arguing in a statement it was not opposed to municipal broadband, so long as it was targeted only to customers unserved by any other provider. AT&T complained Brooks’ bill lacked language protecting them from unwanted competition.

“None of the bills considered … has any provision that would limit government expansion to unserved areas or even focus on those areas,” AT&T wrote.

Less than 24 hours after the vote ended Charter Communications had a special message for members of the legislature.

The cable operator sent invitations to Tennessee lawmakers giving them free airtime to star in their own “public service announcements” that will blanket the screens of Charter cable TV customers, giving the politicians free exposure.

Rep. Calfee's second largest contributor is AT&T.

Rep. Calfee’s second largest contributor is AT&T.

Charter’s director of government affairs for Tennessee was the executive extending the invitation.

“As a leading broadband communications provider and cable operator serving customers in Tennessee, Charter is committed to providing compelling public affairs programming and public service announcements,” said Nick Pavlis, Charter’s chief lobbyist in the state and a Knoxville city councilman. “We hope you will take advantage of this opportunity to speak directly to your constituents. Taping times are available on a first-come, first-served basis, so we encourage you to schedule yours as soon as possible.”

“Right now it would appear to those watching from the outside that big business won and big business is now reciprocating,” said Brooks.

Sen. Todd Gardenhire (R-Chattanooga) called the invitation inappropriate.

“Charter has done everything they could possibly do to deny rural Bradley broadband, Internet/content service,” Gardenshire told the Times Free Press.

“Well, my first inclination is to say I’m surprised, coming the day after they killed the broadband bill in committee,” added Howell. “[It is] kind of ironic now that they’re asking people to come forward and make public service announcements about how good their service is. I’m kind of stunned.”

Municipal Provider EPB Introduces Chattanooga to 10Gbps Residential Broadband: $299 a Month

nextnetThe first provider in the country to offer community-wide gigabit fiber broadband to residential customers today announced it would far surpass the rest of the marketplace with a new 10 gigabit broadband package dubbed NextNet, available throughout the Chattanooga, Tenn. service area of municipal utility EPB for $299 a month.

“Five years ago, Chattanooga and Hamilton County became the first in the United States to offer up to 1 Gig Internet speeds,” said Harold DePriest, president and CEO of EPB. “Today, we become the first community in the world capable of delivering up to 10 Gigs to all 170,000 households and businesses in our service area.”

Its largest competitor — Comcast, charges $299 for up to 2Gbps service in limited service areas, if the customer can wait 6-8 weeks for installation, can afford up to $1,000 in activation and installation fees, and can commit to a two-year contract with a steep early termination fee. EPB will offer its five-times-faster-than-Comcast service to any customer with no lengthy waiting period, no contract, and free installation.

EPB will leverage Alcatel-Lucent’s TWDM-PON broadband technology to deliver scalable fiber broadband, and is also introducing 5 and 10Gbps plans for small businesses and 3, 5, and 10Gbps plans for larger commercial customers. Customers will receive an ONT unit installed by technicians about two weeks before installation is complete. The box, about the size of a DVD player, is required to support the new high speeds. It is usually mounted on a wall near the computer.

“Chattanooga’s 10 Gig fiber optic network is a world-class platform for innovation,” DePriest said. “In recent years, the need for faster Internet speeds has increased rapidly. Chattanooga is the perfect place for companies to enhance their productivity today and test the applications everyone in the country will want tomorrow.”

Despite detractors that claim municipal/public broadband services are economic failures waiting to happen, EPB has delivered tangible economic benefits across the Chattanooga region and is now recognized internationally as one of the country’s most successful public broadband projects.

A study recently released by University of Tennessee at Chattanooga Finance professor Bento Lobo shows “the Gig Network” helped the Chattanooga area generate at least 2,800 new jobs and at least $865.3 million in economic and social benefits. The study also found the EPB smart grid, which is the cornerstone application of the utility’s community-wide fiber optic network, has allowed customers to avoid an estimated 124.7 million minutes of electric service interruptions by automatically re-routing power (often in less than a second) to prevent an outage or dramatically reduce outage duration.

EPB has proven so successful, it has attracted visitors from around the world to study how community fiber broadband can transform a local economy.

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