Document Type

Article

Publication Title

Ohio State Law Journal

Volume

73

Publication Date

2012

Keywords

Broadband; Internet; Telecommunications; Administrative Law; Legislation; Federal Communications Commission; Federalism; Preemption

Abstract

Today, local governments are supplying broadband service to residents to fill the service gap left by major providers. Municipalities are joining forces with local anchor institutions and private providers to close the digital divide and incubate novel public-minded service models. This is the new broadband localism. Some stakeholders fear that local public participation in the broadband market will negatively impact competition. They have articulated this concern in state legislation across the country: nineteen states forbid or otherwise restrict municipal ownership or administration of broadband and three may enact similar restrictions this year. No matter the substantive policy merits of such laws, opponents presume that local governments are “mere creatures of the state” under traditional state-and-local law, and that restrictions like these are unproblematic. This article does two things. First, it identifies and describes the new broadband localism. Local governments and anchor institutions, the article shows, are assuming an important role in integrating the Internet into quotidian municipal life. This development is at odds with the prevailing view of an Internet that is in "cyberspace" or, worse, the "clouds." With this description, the article joins a long line of interventions that argue for seeing high communication technology as above all an artifact of political will. Second, the article argues that the state plenary authority theory on which opponents have relied to justify restrictions on municipal broadband is wrong for at least two reasons. First, the theory overlooks the extent to which the federal government has carved out a positive role for municipalities in an array of legislative fields, including telecommunications and cable, the forebears of broadband. Second, the theory neglects the ways in which the new broadband localism furthers democratic accountability and pluralism. This article posits that, as expressed through recent federal legislation and local efforts, we are witnessing the emergence of an administrative regime that is far more accountable and responsive to local priorities than state plenary authority theory appreciates. Congress, the article concludes, must act to preempt state restrictions, or courts must accept that municipalities are fundamental to the administration of public law in this dynamic legislative field.

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