A 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.

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.

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 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.”

Frontier is the dominant phone company in West Virginia.

Ann Sheridan and Michael Sheridan are probably not related, but they share one thing in common: lousy DSL broadband.

Michael Sheridan, who lives in Lewisburg, W.V., is the lead plaintiff in a dragged-out class action lawsuit against Frontier Communications in the state, alleging the phone company has engaged in marketing flim-flam promising lightning fast DSL Internet speeds many customers complain they just do not receive. Ann Sheridan is a university lecturer in Ireland who doesn’t enjoy her DSL service as much as she endures it, when it works.

They live thousands of miles apart, but the problems are largely the same: for-profit phone companies trying to get as much revenue out of copper-based networks suitable for 20th century landlines while spending as little possible on broadband-friendly upgrades.

The phone company that dominates West Virginia has done all it can to have the lawsuit thrown out of court, claiming its terms and conditions mandate dissatisfied customers seek arbitration instead of a class action case. Frontier claims it inserted that condition into its terms and conditions a few years ago. Sheridan and his attorneys are now before the West Virginia Supreme Court of Appeals defending the case.

Crete is an island and part of the territory of Greece.

Despite Frontier’s insistence it sells contract-free Internet with no tricks or traps, Sheridan argues Frontier traps customers with unilateral fine print.

“Cases from all over the country establish that a simple notation on a website cannot form an agreement to arbitrate, a line item at the tail end of a bill that does not even state the specifics of the agreement cannot form an agreement to arbitrate, and a bill stuffer purporting to unilaterally amend an existing contractual relationship does not form an agreement to arbitrate,” the respondent’s brief states.

Many West Virginians with Frontier DSL complain they never exceed 5Mbps in speed, even though they are buying plans that advertise double that.

“Frontier’s practice of overcharging and simultaneously failing to provide the high-speed, broadband level of service it advertises has created high profits for Frontier but left West Virginia Internet users in the digital dark age,” according to the brief.

County Kildare, Ireland

Life isn’t much better for those driving 30 minutes outside of Dublin, where broadband can be charitably described as “rustic.” In fact, Sheridan claims there is better broadband in the back-end of Crete than what the average resident in suburban and rural Ireland can manage to get out of questionable copper wiring.

In one notorious incident Sheridan described as “stereotypically Irish,” broadband service was brought to its knees for a good part of County Kildare for over a week earlier this year after a group of retaliatory cows upset over the Irish winter worked their way through a broken fence and collectively took out their frustration on a transformer they knocked over, taking out Internet access in the process.

Just having broadband service available doesn’t solve the digital divide if that service becomes oversold and unreliable. Both Sheridans argue broadband connections often deteriorate as more customers sign up. Without corresponding capacity upgrades to keep up with sales, speeds slow and service can become troublesome.

Broadband nemesis

Patrick Donnelly, a farmer and builder from Calverstown reports Internet speeds 20 years ago were faster than what he gets today from his DSL service.

“Currently, I think I’m on my fourth provider. There’s all these little start-ups and generally they’re not too bad when you sign up originally,” Donnelly reports from his farm in Ireland. ‘But as soon as an ISP signs up more customers, speeds seem to get slower and slower. During peak usage times, it can become unusable.’

In West Virginia, some customers believe if their Internet speeds are poor, they need to buy an upgraded, faster speed tier from Frontier to compensate. That is usually a waste of money if the existing network is either inadequate or overburdened with customer traffic. But many customers don’t realize this. Often, fine print in a company’s terms and conditions disclaims the very bold and prominent speed claims that most customers actually see. Sheridan argues Frontier’s fine print goes even further by limiting their customers’ recourse when advertising claims do not meet reality.

“Frontier’s position is that consumers are obliged to be on alert at all times – diligently reviewing the fine print on each and every page of promotional material received – for the possibility that they may be waiving their rights by doing nothing at all,” the brief states.

Sheridan admits her point she’d move to Crete to get better broadband would be funny if the implications were not so serious.

“Not having broadband is a bit like not having electricity or only having it intermittently,” Sheridan said.

“It’s not a luxury any more, this is a necessity,” Donnelly said in agreement. “We’re 20 years behind now it’s time we caught up.”

Google Fiber has quietly unveiled its own discount Internet plan for the income-challenged that vastly simplifies the hoops consumers have to successfully jump through to enroll.

Relying on Census block and FCC broadband availability data, Google proposes to sell residents of Kansas City living in areas identified as having a sustained digital divide a 25Mbps Internet plan for $15 a month. The new plan is accompanied by totally free connections and service for residents of select subsidized housing — mostly apartment buildings.

The new service offerings will replace Google’s 5Mbps free service option, which was dropped from Google Fiber’s menu this week. Google previously charged residents a $300 installation fee to qualify for free service which proved to be an insurmountable challenge for many paycheck-to-paycheck residents who did not realize Google would also accept $10 monthly installments for 30 months.

The choice of 25Mbps happens to coincide with the FCC’s official minimum speed designation to qualify as “broadband.” Google hopes the low-priced broadband option will inspire residents living in broadband-sparse neighborhoods to sign up for service. Currently, most low-income residents not subscribed to fixed broadband rely on their cell phones for Internet access. Google makes its money providing search results and accompanying contextual advertising, and home broadband service remains an important part of Google’s ad revenue stream.

Google’s plan avoids the intrusive qualification requirements most phone and cable companies insist on to receive discounted Internet service. Comcast, among others, demands evidence of school-age children enrolled in the federal school lunch program, and forbids participation to current customers who manage to already scrape together enough to pay for broadband service. Google’s plan relies on a potential customer’s location and avoids income tests and paperwork, opening its program to childless couples, young singles, and seniors.

Google’s $15 Broadband plan features:

• $15 a month
• 25Mbps upload and download speeds
• No data caps
• No application process or contracts
• No equipment rental and no construction or installation fees

Residents of Kansas City can determine their eligibility on or after May 19, 2016 on this website.

Oman has declared an all-out war on the digital divide, with the country’s broadband provider pledging every citizen will have broadband access within four years, using any means necessary.

With around 50% of the population living in Muscat, the capital of the Arabian Gulf nation, Oman has a pervasive rural broadband problem. The country is hurrying to rid itself of aging copper wire phone infrastructure, replacing it largely with fiber optics, which will reach 80% of the population by 2020. The absolute monarchy that rules Oman has made it clear it considers broadband service an essential utility, as important as electricity and clean water.

Sultan Qaboos bin Said al Said, who has led the nation since 1970, decreed Oman must gradually create a knowledge-based economy, particularly as dependence on fossil fuel revenue is expected to diminish during the 21st century. Sultan Qaboos has presided over the Vision 2020 plan, which seeks to cultivate Oman’s information and communication technology economy.

To accomplish this, every inch of the sultinate must have access to fast broadband speeds.

Talib Al Rashadi, business relations manager at Oman Broadband, made it clear he intends to bring Internet access through fiber optics, wireless service, and even satellite to the remotest sections of the country.

“The speed that we used to have one year ago was not more than 20 or 25Mbps,” said Al Rashidi. “Today, we have speeds of 100 to 150Mbps and even gigabit speeds. This is a very high speed, which enables some other applications, such as smart cities, smart governance and others.”

But that is just the beginning. By 2018, all major population centers of other governorates outside of Muscat will be covered with fiber to the home service. Oman is widely expected to pass the United States and Canada in broadband performance and coverage within the next four years. But it will need to do something about the cost of service to be recognized as a true world leader. An unlimited 60Mbps broadband line costs the equivalent of $156 a month. Although many Omanis’ enjoy a high standard of living, broadband at that price remains expensive.