• This isn't how preemption analysis works. And it isn't just the 1996 Act. The extent of Congressional preemption of communications services depends not on one statute, but on the assessment of the entire scheme. And you haven't explained what "announcing" means. Is this building a competing public service network, or taking the existing networks? Even if there were compensation for a taking, is it your contention that no federal regulatory scheme or invocation of the commerce power exists to prevent the retrospective municipalization of all the investor-owned communications networks in a state? Since free access to broadband implies the replacement of the telcos by free VoIP? services, but the telcos are substantial owners of the relevant carriage ways which are by their nature essential to interstate commerce, don't you have some other federalism questions to answer? I didn't ask a question last time that you could answer by a paragraph of ignoring and a request for me to do your work for you.

• The rest of the piece is just, "and I would give everybody ice cream." There's no commitment to actual thinking about the politics. Some effort has been expended, but the piece is unimproved.

Would a state created right run into federal obstacles?

In 2005 a bill was introduced that would ban states from allowing municipalities to offer their own telecommunications services unless there was market failure. The bill failed to become law at the end of the 109th Congress. A second attempt is not out of the question, as the bill was a result of intense lobbying by telecommunications companies.

In response to this bill and to a high demand for municipal public access projects, other legislation was introduced. This legislation proposes to dismantle any state or local laws that prohibit any state or local government from “providing advanced telecommunications capability, or any related service, to any person or any public or private entity.” The bill is still awaiting action before the 110th Congress, but passage would clear a path towards municipalities building their own community-owned broadband networks. The bill would require notice and a public hearing before a municipality could proceed with its own model for publicly accessibly broadband. What is not required, however, is the affirmative consent of the people. I think this means a state mandate to provide free broadband in every municipality would not conflict with the proposed law, as it would only raise the bar and transform what would normally be an allowed privilege to an enforceable right.

While it is unclear whether the Telecommunications Act of 1996 may constitute a pervasive federal regulatory scheme, this federal “field pre-emption” would unlikely reach state actions that seek only to provide universal access to the Internet, and not to raise barriers to entry for national phone carriers or adopt regulations inconsistent with the goal of promoting universal service (i.e., the Universal Service Fund). As far as I know, there is no other federal directive that would prohibit a state from announcing that every citizen living in the four corners of its territory have free access to high-speed broadband as a public service. I’m sure (and will appreciate if) Professor Moglen will correct me here.

A state right and initiative

As I think everyone knows, phone and cable companies are hesitant to shoulder the burden of providing coverage in rural communities due to the difficulty of negotiating undeveloped terrain and low population density. Likewise, low-income families may simply be incapable of affording the high rates set by Internet service providers---in fact, they may not even be able to afford computers at all. Necessary to a successful public access project, then, are two components: universal coverage and, in appropriate cases, the physical hardware for individuals to benefit from that coverage. I will discuss each in turn.

Wireless Mesh Networking

Like with public education, which is provided for by all state constitutions and is even a right in some, financing could come from revenue derived from state and local sources. Every municipality would collaborate closely with state authorities to develop a homebrewed solution to the kinds of highly “eccentric” problems presented by the makeup of a particular city or region’s populace and geography.

One avenue towards reducing costs and making a public access project more feasible, however, is by creating a statewide system of wireless mesh networks, which are cheaper than their wired and traditional wireless counterparts.

We have already seen this kind of project attempted in Philadelphia. Motivated by a concern for residents from low-income communities who could not afford the rates charged by the ISPs, the city began blanketing itself with transmitters to provide citywide wireless broadband. It is also a viable option for rural communities, whose remoteness and unique geographical context dissuade many telecommunications companies from wiring the region (here are some examples outside the U.S.).

An advertising model would generate enough revenue to keep service free of charge for all (though I know we all find push media highly suspect). The government would absorb the cost of deployment and maintenance as an operational cost, with the option of offsetting such a cost by leasing public fixtures for the private wireless provider to mount the transmitting nodes.

Municipalities might not be accustomed to providing such a public utility. As a state created right, it would be the state’s responsibility to ensure that the provision of free Internet access for all is done adequately and cost effectively. Every state would conduct its own “laboratory” experiment, collecting information from local authorities, identifying core competencies from every region, recommending modifications where it can and conducting studies where it cannot, and finally articulating a “best practices” paradigm that could be exported to struggling municipalities and even, perhaps, other states contemplating similar strategies.

…And Free Laptops For All?

Even with an available wireless mesh network, the barrier to entry for both rural and urban consumers might be the high-cost, low-benefit perception of computers. For rural residents, the benefits of free Internet would be difficult to perceive due to what might be called a traditional rural aversion to “city” culture or an ideological tendency to just “make do.” For urban residents, the costs of personal devices that would connect to the network may be simply outside the orbit of their budgetary allowances.

To complement the free Internet I would recommend a state-wide initiative to provide free or subsidized XO-1 laptops to qualified residents. Such a laptop would present low-income rural and urban residents with the opportunity to experiment with cheap, easy-to-use (easy enough for a child) technology. The laptops would allow for the same range of activities as any other personal computer. With enough exposure to the Internet, urban and rural residents initially ambivalent or skeptical about free access may eventually come to see the value of the Internet as an empowering, autonomy-furthering technology.

-- AlfonsoJimenez - 07 Jan 2009

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