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VOL. 39 | NO. 11 | Friday, March 13, 2015

Battle of the band(width): Fast, available Internet more important than state vs. FCC game in legislature

By Sam Stockard

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Joyce Coltrin’s business is wandering in Bradley County’s technological wilderness. And it’s likely to remain there – because of legal threats – until the General Assembly changes state law.

Located on Tunnel Hill Road in Cleveland, J&J Nursery sits in an area of southwest Bradley County with little or no Internet access, just three-eighths of a mile outside the service area of Electric Power Board, the Chattanooga utility that provides electricity and one of the fastest broadband services in the nation.

Coltrin, who says her plant business is struggling because of technological shortcomings, and about 150 other Volunteer Energy customers are stuck in a pocket of weak connectivity.

They and hundreds of others just outside the Electric Power Board’s range also are caught in a looming argument between the Federal Communications Commission and the Tennessee Attorney General.

“I guess we just feel it’s unjust we have been singled out by the telecoms,” says Coltrin, leader of Citizens Striving to be a Part of the 21st Century.

“We are such a small little pocket.”

The FCC recently adopted an opinion and order preempting state laws in Tennessee and North Carolina by allowing Chattanooga’s EPB and the city of Wilson, N.C., to expand their broadband service outside their footprints.

Both offer gigabit-per-second broadband, voice and video service, and, in Chattanooga’s case, the high-speed network helped lure Amazon and Volkswagen to the area, an FCC release states.

But while state law permits electric companies to offer statewide telecommunications services, Internet and cable services are limited to the system’s footprint.

“Those are artificial boundaries,” Coltrin says. “If they make laws that make me a substandard citizens, that’s something the FCC has to address.”

Nearly 150 people from Bradley County attended a recent community meeting to glean information from EPB and Volunteer about the FCC decision. The room was full of energy, but might have received some bad news from the power suppliers.

EPB and Volunteer Energy don’t want to step into a new frontier on the basis of an FCC ruling alone.

Both utilities want the backing of state law.

“Any discussion of an agreement between EPB and VEC is premature, although we have been talking for quite some time,” says Patty Hurley, vice president of marketing & economic development for Volunteer.

“What needs to happen first is that the state law is changed to allow EPB to offer Internet service out of its present footprint.”

The FCC’s ruling faces legal battles and delays, Hurley notes, and a change in state law would eliminate the need for federal intervention.

Says J.Ed. Marston, vice president of marketing for EPB: “The clearest path forward is if the Tennessee Legislature chooses to adopt legislation to allow us to move outside our electric footprint.”

Coltrin, who has led the community effort for several years, points out EPB operates in Bradley County but doesn’t serve all of Hamilton County, where Chattanooga is located. This creates a hodge-podge of service areas between Volunteer Energy, a cooperative, and EPB, she contends.

Meanwhile, for-profit Internet providers such as AT&T haven’t ventured into the area because of the expense of installing infrastructure for a small number of customers.

The area’s hope for entering the 21st century lies in the hands of state Rep. Kevin Brooks, R-Cleveland, who is carrying HB1303, a measure to allow municipalities operating electric plants to provide services outside their electric system service area.

He is quick to point out he is sponsoring the bill because the city of Cleveland made the request, and the Cleveland legislative delegation supports it 100 percent.

The FCC ruling shows citizens have a right to basic utilities, and in modern society that includes Internet and cable, Brooks says.

“The FCC is saying EPB should be able to go where they need to go to provide services,” Brooks says.

Regardless of what’s happening to residents in rural areas surrounding EPB’s service, Tennessee’s most powerful political leaders oppose the FCC’s decision, including Gov. Bill Haslam, Lt. Gov. Ron Ramsey and House Speaker Beth Harwell.

“Our job is to create a level playing field and then to do everything we can to make it be a net gain to the state,” Haslam says in an Associated Press report.

The governor raises an eyebrow about telecommunications companies being forced to compete with government-subsidized broadband, since Chattanooga used stimulus money to fund its gigabit service. However, he admits for-profit businesses aren’t offering the same high-speed Internet across Tennessee as EPB is in Chattanooga.

Google plans to set up fiber-optic service in Nashville, and AT&T is planning gigabit-speed service in the state’s capital city, though the time frame is uncertain.

Putting up a roadblock

Just when EPB and Bradley residents such as Coltrin thought fortune was smiling on them via the favorable ruling from the FCC, legislators from other parts of the state began calling for legal action to block the decision.

State Reps. Jeremy Durham and Glen Casada, both of Williamson County, and state Rep. Andy Holt of Weakley County in West Tennessee are asking State Attorney General Herbert Slatery to file suit against the federal government. Slatery previously urged the FCC not to override state law and says he is “disappointed” the body asserted its authority over a state responsibility.

“We do not think it’s appropriate for the FCC, which is an unelected federal body, to overturn laws that have been made by the duly elected members of the General Assembly,” says Durham, R-Franklin, during a press conference at the Legislative Plaza.

“Whether you think those folks should be able to go outside their territorial limits or not, I think is a question for another day.

“But what happened is you have an entity of the state, just like a city, and you have the federal government telling states what they must do with their institutions.”

Calling it a “slippery slope” and bad precedent involving a state-chartered entity, the three legislators say the state’s sovereignty is “usurped” and their remedy is to take legal action against what they say is an “unconstitutional move” by the FCC.

“If the U.S. Congress had passed this bill, you would not have us up here. But you have an unelected, unaccountable bureaucracy – that should scare everyone – they’re overriding the will of the people in the House and Senate of the state of Tennessee,” Casada says.

Holt compares the FCC’s decision to President Barack Obama’s proposal to give amnesty to limit the deportation of illegal immigrants.

“I think what we see from Washington is a steady flow of unconstitutional actions, and in this we see yet another,” Holt says.

They also contend their stance has nothing to do with campaign contributions. In the 2014 election cycle, Tennessee candidates netted $643,000 from the telecommunications industry, $211,400 from AT&T and $137,700 from Comcast.

The governor alone received $64,150 for his re-election campaign, while Speaker Harwell got $12,850 and Casada received $9,500, according to the Associated Press.

Says Casada, however, “No one up here makes those decisions based on that.”

Philosophical differences

In making their argument, Durham says several times the FCC’s decision is tantamount to giving police in Franklin the authority to write speeding tickets in Memphis, and it makes no difference that Bradley County residents are willing to pay for broadband connections.

“I don’t understand that logic,” Coltrin says.

Neither does Lindsay Hathcock, executive assistant for Bradley County Mayor Gary Davis.

“Our concern is equity of service for our citizens and the customers throughout Bradley County,” Hathcock says.

Hathcock contends it’s not fair, for instance, when some area students can log on to the Internet at home to work on assignments while others might have to drive several miles to a library for Internet access.

Bradley County’s government isn’t concerned about whether the broadband is provided publicly or privately, he notes. But so far, private Internet providers such as Charter Cable, Comcast and AT&T U-verse aren’t stepping in to fill the gap because of high installation costs vs. low return, he says.

The practicality

EPB was created by a private act in the state legislature in 1935, and in 2009, it began construction of its next-generation Smart Grid with a federal stimulus grant of $111 million.

Also, in 2009, EPB Telecom changed its name to EPB Fiber Optics, launching new services and using the area’s only 100% fiber optic network.

EPB Fiber serves most of Hamilton County and part of Bradley County already, along with portions of seven other counties, including North Georgia. Marston says it is prepared to serve southwest Bradley if the law allows.

The super-fast, one-gigabit-per-second service is standard for EPB customers and is considered an economic driver, helping turn Chattanooga into a sort of Silicon Valley of the Southeast.

In the wake of the FCC ruling, EPB is well aware of the potential for legal challenges, spokeswoman Danna Bailey says.

“We want to get clarification of what we can do legally before we take action,” she says.

First, EPB wants to provide broadband outside its footprint, only where it is requested. Second, financial factors must be weighed, and third, technical issues could come into play as well, Bailey says.

If it’s good policy, though, to allow municipal-owned utilities to operate outside their footprint, Durham argues it should be done legislatively.

With this type of legislation languishing for seven to eight years, Brooks faces long odds persuading legislators to follow his lead.

State Sen. Mark Norris, R-Memphis, sent the “Regulation Freedom Resolution” to the Senate floor recently to stop the federal regulators from handing down state mandates. He cited the FCC’s Internet decision.

Yet, Brooks contends, “The FCC ruling gives us cause to continue work on HB1303.”

And from the standpoint of daily reality faced by people such as Joyce Coltrin, Brooks doesn’t consider this federal “intrusion.” Instead, he believes it is an “exclusion.”

Sam Stockard can be reached at sstockard44@gmail.com.

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