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Abstract

While called the “bedrock” and “cornerstone” of US media policy, the localism principle has been chipped away over 40 years by the Federal Communications Commission's (FCC) full throated embrace of market-based practices. Recently, however, localism has emerged as a pivotal battleground in telecommunications. Through case studies of three recent regulatory issues—local cable franchising, municipal broadband, and small cell deployment—this paper examines the role of localism in US-based cable and telecommunications policy. It coins the term “telecommunications localism” to capture the changing technological focus of media regulation, from content to infrastructure. In regulatory actions over the past decade the FCC has simultaneously acknowledged local municipalities’ role in telecommunications deployment and actively worked to curtail this power through deregulation. These deregulatory actions strip municipalities of their autonomy over license negotiations and local rights of way and stymies the development and deployment of local communication systems.

Keywords

5G cable FCC localism municipal broadband telecommunications

The localism principle has been called a “foundation,” “cornerstone,” and “bedrock” of American media policy (Napoli, 2000, 2001). While never codified in law, the US communications regulator, the Federal Communications Commission (FCC), repeatedly attests that localism is a guiding value entrenched within all broadcast policy decisions (FCC, 2008). Briefly, localism, or the localism principle is the requirement that broadcasters reflect and be responsive to their communities’ needs and interests. Within these broad parameters, however, the FCC has historically struggled to implement localism regulations (Horwitz, 1991; Napoli, 2001). Regulations that did exist—the main studio rule, preference for local owners, community ascertainment, and limits of station ownership—have all succumb to a decades-long deregulatory practice in favor of market-based controls (Freedman, 2008).

While “under stress” in broadcast policy (Napoli, 2000), localism has emerged as a critical battleground in cable and telecommunications policy. The adoption of terms like “broadband localism” (Sylvain, 2012), “wireless localism” (Sylvain, 2013) and “digital localism” (Fuentes-Bautista, 2011) capture the rhetorical, social, and technological shift from the local modalities of broadcasting toward digital and internet infrastructure. Aligning these terms, this article proposes “telecommunications localism” to capture the move to local digital infrastructure.

Recent policy debates over the role of local franchise authorities (LFA) in cable regulation, municipal ownership, management, and funding of local broadband networks, and the ability of telecommunications companies to place 5G small cells on public property, call into question the role of municipalities in telecommunication deployment, and challenges their autonomy to govern rights-of-way, easements, and public property. Through case studies of the abovementioned issues, this paper examines the role of localism in cable and telecommunications policy. Here, we find that the FCC's approach to telecommunications localism has followed that of broadcasting: In regulatory actions over the previous decade the FCC has simultaneously acknowledged local municipalities’ role in telecommunications deployment and actively worked to curtail this presence. These deregulatory actions strip municipalities of their autonomy over local rights of way and stymies the development and deployment of local communication systems. I argue that this curtailing of municipal authority serves the interests of the largest cable and telecommunication companies, who are all too eager to bypass the local to establish regional and national networks that provide great opportunities for profit-making.

To be sure, neither the FCC nor market stakeholders employ the term “localism” in their deliberations, nor are they making any direct linkages between their practices and those of broadcasting to which the localism principle has traditionally applied. However, this paper makes the case that the ethos of localism that has governed, at least normatively, broadcast regulation for almost a century in the United States, is now firmly present in telecommunications policy. Thusly, this paper is as much a critical interrogation of the role of municipalities in telecommunications regulation as it is a thought experiment in applying a “foundational” element of media policy to telecommunications (Napoli, 2001).

Literature review

Broadcast localism

Localism—the expression of local autonomy in political decision making, citizen participation in civic life, and the belief that local communities know their needs and interests better than the state—has been called an “entrenched” valued in American political genealogy (Cowling, 2005; Briffault, 1990a). Indeed, a debate over the power of local governments was a hallmark of the Madison-Jefferson Federalist Papers with Jefferson arguing in favor of a nation of “little republics” (Briffault, 1990b). Later, localism was evangelized by Alexis de Tocqueville ([1835] 2003) who marveled at the deliberative democratic ethos of New England's town halls and the devolution of decision making to individual communities. In these instances, localism engendered a geographically bound conceptualization of “the local” one defined by cities, towns, villages, and neighborhoods.

The valorization of local communities was translated into broadcast policy with the creation of the Federal Radio Commission (FRC) in 1927 and its successor, the FCC in 1934 (Kirkpatrick, 2007). While the term “localism” does not appear in the 1927 Radio Act, the 1934 Communications Act, or the 1996 Telecommunications Act, the FCC nevertheless championed it as a foundational value of American communications policy (Cole and Murck, 2006). “The localism principle” directs broadcast licenses to be responsive in programming, studio location, hiring, management, and news and information, to the needs and interests of their community. This stems from the fact that broadcasters are licensed by the FCC to operate in geographically delineated areas, rather than appointed to serve regions or entire states such as in the United Kingdom and Canada, respectively (Ali, 2017). While the FCC has never formally defined localism, a statement by former Commissioner Jonathan Adelstein summarizes the key components:

… localism reflects the commitment to local news and public affairs programming, but it also means a lot more. It means providing opportunities for local self-expression, it means reaching out, developing and promoting local performing artists and other local talent. It means making programming decisions that serve local needs. It means making sure that the coverage reflects the makeup of the community… Localism also means the station being responsive to the community in other ways, such as dedicating the resources to discover and address the needs of the community. (FCC, 2003: 19–20)

Despite lofty ambitions, the FCC has historically struggled to implement localism in practice and regulation (Cole and Murck, 2006). Part of the issue stems from the fact that the First Amendment of the US Constitution bars the FCC from program requirements. The Commission cannot mandate locally produced or relevant programming (Ali, 2017).¹ A second issue is that broadcast signals do not respect political boundaries, and therefore signals may bleed from one community to the next (Braman, 2007). This is part of a much larger concern as to the relevance of geography and “place” in a digital world (Ali, 2017; Cowling, 2005; Meyrowitz, 1985). Indeed, some have gone so far as to argue that the geographically bounded premise of localism needs to be abandoned in favor of “a new social conception of localism” based on “diversity of programming to serve an assortment of audience communities” (Stavitsky, 1994). A third issue is that broadcast localism is anathema to the practice of networks and chains (Horowitz, 1991). “The solution to this basic contradiction” argues Horwitz (1991) “was to preach the desirability of localism while constructing no supports for the policy in regulatory practice” (p. 129). Said differently, the localism principle falls outside the political economic interests of private industry which seek expansive markets that the local cannot possibly deliver.

To circumvent these geographic and political economic impasses, the FCC implemented oblique regulations. These included the main studio rule, which required broadcast licenses to build their station within the community of license, favorable license renewals for local owners, community advisory boards, and local station programming logs. These have all been abandoned in the decade's long adherence to neoliberal deregulation. As Cole and Murck (2006) summarize: “While repeatedly paying lip service to this idealized notion of localism, the Commission has time and again acted in near total disregard of a supposed localism obligation” (p. 240). Ali (2017) argues that the localism in broadcast policy is nothing but an empty signifier to which the FCC pays only lip service.

Similarly, Braman (2007) argues that localism in theory butts-up against localism in practice. Individuals experience multiple “locals” in their daily lives, which makes tethering a broadcast station to a locality admirable in theory but fraught in practice. As Braman asks: “Is it even possible to think of a city as a single community?” (p. 242) since “the functions of our daily lives now take place across a number of locales; we often work within a space served by one local government, live in another, and engage in economic, and recreational and educational activities in yet other jurisdictions” (p. 240).

Taking stock of the function, past, and future of the localism principal, Anderson and Curtin (1999) studied the FCC's Chicago broadcast hearings of the 1960s, observing how the Commission implicitly debated “whether it was possible to imagine television as a geographically fixed cultural form, one embedded primarily within local contexts, instead of one circulated through national or global networks” (p. 292). The authors conclude that for the localism principal to survive regulators must “move beyond a nostalgia for distinct, cohesive locales and [] overcome the deep skepticism that sees the electronic media as inherently destructive of local identities” (p. 302).

In summation, the broadcast localism principal—which imagines, if not celebrates, a geographically bound and based local community—has not been able to adapt to contemporary life that privileges mobility and instant communication across vast distances.

Telecommunications localism

The previous decade has seen scholars shift their attention from broadcast localism, with all its contradictions, to “localism in transition” (Fuentes-Bautista, 2014). In other words, the expression of localism in cable, telecommunications, and broadband policy. While there is no localism mandate in telecommunications regulation or policy, the history of cable and telecommunications regulation, as recalled below, speaks to a starring role for municipalities and local communities. Martha Fuentes-Bautista (2014), for instance, examines cable regulation as it pertains to the enhancement of local voices through public, educational, and governmental (PEG) access channels. The channels which offer airtime to the public, educational institutions, and local government on cable networks, are permissible under franchise agreements that cable providers must sign with each municipality they wish to serve. Part of a municipality's powers in granting cable franchises is to request PEG channels and funding for these channels. PEG channels reflect localism's encouragement of local voices but shifts the technological modality from broadcast to cable. Fuentes-Bautista contends that the future of media localism, or what she dubs “digital localism” “should focus on increasing the capacities of diverse local publics to participate in different aspects of their community information ecosystem. These sets of local capacities include abilities to access broadband-enabled applications, as well as to produce, distribute, curate and exchange” (2014: 66). Information communication technologies are paramount expressions of digital localism because cable companies—which are locally regulated in the United States through their local franchise agreements—offer internet in addition to video. Fuentes-Bautista ponders “how municipal governments can use digital video franchise resources to recraft local telecommunication and information policy interventions to bridge these gaps” (p. 65)? With 5000 across the country, PEG organizations have an important role, Fuentes-Bautista argues, in a localism-based approach to bridging the digital divide.

Agreeing with Fuentes-Bautista on the need to shift the policy conversation from broadcast to broadband, Oliver Sylvain (2012) introduced the term “broadband localism” to signify municipal broadband networks. Sylvain argues that local governments should be able to establish and manage broadband services as part of their mandate of local governance. Local investment in broadband networks, Sylvain contends, is crucial components in correcting the infrastructure access divide:

All broadband is local. The speed and bandwidth capacity of local network infrastructure determines users’ media consumption habits. They affect whether users socialize through email, social networking, or video chat. They define whether users turn to cable television or their laptop to watch video programming. (2012: 796)

Crawford (2019) agrees, pointing out that “America's awful, expensive data connectivity is a national problem for which the solution is intensively local: cities and localities are leading the way” (p. 67). Inspired by Sylvain and Crawford, Ali (2021) broadens the term “broadband localism” to include not only local governance of broadband networks, but spatiality, usage, technology, and structure. Every aspect of a broadband network, argues Ali, is fundamentally local.

Sylvain (2013) next coined the term “wireless localism” to capture the normative goal of local public participation in telecommunications policy decision making, especially in spectrum auctions. Such participation is necessary because of “idiosyncratic local considerations, including neighborhood contiguity, the physical integrity of shared spaces, population density, topology, safety, environmental justice, and economic development” (p. 158). Sylvain ties localism and local participation in policymaking directly to the public interest and laments the latter's erosion. He argues that local government voices should be incorporated into the federal spectrum policy. Sylvain connects the dots between broadcast localism, with its focus on local voices and talent, to digital localism, with its focus on networks and people.

Adherents of a localist approach to telecommunications policy agree on three points: the acknowledgement of the salience of local, geographically based communities; an emphasis on municipal authority to determine and express the needs and interests of constituents; and a belief in infrastructure as a pathway for greater connectivity. I propose the term “telecommunications localism” to capture these shifting modalities of local communication networks, be they coaxial, digital subscriber line, fixed wireless, or fiber. The terrain under which localism rests is, and has always been, unstable. Its foundation as a geographically based principle is challenged by digital communication technologies, which allow us to be local, anywhere (Cowling, 2005), and by neoliberal capitalism, which seeks larger, homogenous, and global markets, eschewing, reshaping, or abandoning local communities (Harvey, 2010). Still, the localism principle endures, not only as a foundational value in broadcast policy, but recently as an underacknowledged theme in cable and telecommunications policy. To be sure, localism is a normative ideal, based on the belief that local communities “are generally best situated to discover and resolve residents’ problems” (Sylvain, 2013: 167). But it is precisely because it is an entrenched normative value that the localism principle cannot be easily dismissed. I therefore ask the following research question: How has localism been conceptualized and implemented in contemporary FCC policies regarding telecommunications and cable networks?

Method and argument

To address this question, I undertook three case studies of US cable and telecommunications regulation as implemented by the FCC. Case studies are a recognized methodological approach in critical studies of public policy (Broughton Micova, 2019). Case studies “provide the researchers with a holistic understanding of a problem, issue or phenomenon within its social context” (Hesse-Biber, 2016: 221). Case studies are particularly valuable for studies of policy because they are amenable to a variety of epistemologies and methods of data gathering and analysis (Broughton Micova, 2019). I analyzed three FCC cases: local franchising and in-kind contributions to PEG; municipal broadband in Tennessee and North Carolina; and small cell deployment. Using document analysis, I analyzed notices of proposed rulemaking, draft orders, final report and orders, and public comments. Document analysis is the foundation of the methodological toolkit of policy scholars (Karppinen and Moe, 2019). The aim is to use the policies and public comments as texts “to trace meanings and compare then with the understandings of the same concept found in scholarly works” (Karppinen and Moe, 2019: 259). In our case, the documents-as-text are compared against the scholarship on localism recalled above. A critical reading of policy documents reveals their socially constructed, and therefore, political, nature. Comparing the policy documents with the normative literature on localism that recognizes the importance of municipal autonomy, I argue that the FCC's approach to telecommunications localism follows the trajectory set by broadcast localism—praised in theory but undermined in practice. Here, localism is described as a barrier to market expansion and profit generation rather than an affirmation of local decision making to the detriment of municipal governance and the benefit of market fundamentalism.

Case studies

Case 1: local franchising

Cable television got its start as “community antenna television” (CATV)—a video transmission method by which isolated communities beyond the reach of broadcast signals harvest those signals (through antenna positioned atop mountains or towers) and re-distribute them to the community via coaxial cable. This localism ethos was grafted in to the 1984 Cable Act wherein authority over cable networks was given to municipalities through local franchising authorities. Section 601 of the Act specifically notes that the “purpose of this title [is] to… establish franchise procedures and standards which encourage the growth and development of cable systems, and which assure that cable systems are responsive to the needs and interests of the local community” (Cable Communications Policy Act of 1984, §601(2) emphasis added). Unlike broadcasters, cable providers do not go to the FCC for a license, but rather to each individual municipality through a Local Franchising Authority (LFA). According to the FCC, “a franchising authority is the local, municipal, county or other government organization that regulates certain aspects of the cable television industry at the state or local level” (FCC, 2020). Today, cable is a key technology and cable companies’ key stakeholders in the provision of internet connectivity. Indeed, most Americans receive high-seed internet via a cable company (Pew, 2022).

The Act permitted LFA's to ask for concessions from the cable provider in compensation for the use of public rights of way in deploying their networks. Concessions include channels for PEG operations and a franchise fee of no more than 5% of the “cable operator's gross revenues derived in such period from the operation of the cable systems” (§622(b)). Many municipalities used the franchise fee to fund PEG organizations (e.g. equipment, space, and salaries). Others interpreted Section 622 to permit them to require concessions above the 5% fee if those concessions concerned PEGs (Scherer, 2020). Section 611 of the 1996 Telecommunications Act permitted LFAs to ask franchisees to link education and governmental buildings through an institutional network (or “I-Net”) for video transmission.

PEG organizations are funded by cable companies and operate primarily on a volunteer basis, sometimes with a small salaried staff. They offer video production training and programming for individuals and community organizations (Ali, 2014). Television programs are produced by volunteers from the public and offered on the cable channel and online. Some may recall the film Wayne's World which focused on the volunteer hosts of a public access television show. While PEG organizations got their start as public production centers focusing primarily on video, the past two decades have seen many evolve into community media centers, offering computer labs, podcast lessons, resume help, and digital literacy training (Ali, 2014). During the pandemic, PEG organizations performed key roles as “communication technology experts” (Aufderheide et al., 2020) helping officials conduct zoom meetings and “seniors who were trying out apps for the first time” (Aufderheide et al., 2020). In a survey of PEG organizations, one channel even noted “being enlisted to help develop more free open public wifi access” (quoted in Aufderheide et al., 2020: 8). As noted in the literature review, PEG organizations have also been identified by researchers as potentially key institutions in the provision of community broadband (Fuentes-Bautista, 2014).

Frustrated by what they claimed were unreasonable requests from LFAs and unreasonable denials of franchise, cable providers took their complaints to the FCC in 2006 and 2007 to activate Section 621(a)(1) of the 1996 Telecommunications Act which would forbid LFAs from “unreasonably refusing to award an additional competitive franchises for the provision of cable services” (FCC, 2007: 2). In 2007, the FCC sided with cable providers and made three significant rules with respect to PEG funding:

LFAs could not ask for excessive concessions, specifically “issues related to non-cable services or facilities.” This barred LFAs from requiring franchisees to build broadband networks connecting municipal institutions as a condition of franchise.

Cable providers need only provide “satisfactory or sufficient” PEG support not “significant support.”

PEG-related funds that are not capital expenditures (i.e. salaries) would be subject to the 5% franchise fee (FCC, 2007).

This decision had a devastating effect on many PEG organizations, who depended on a steady income of operating and capital coverage from cable companies (Goldfarb, 2013).

The FCC picked up the case again in 2015 because of petitions for reconsideration filed by the National Association of Telecommunications Officers and Advisors (NATOA) and others. The petitioners argued that the FCC's rulings were ambiguous and required clarification (FCC, 2015a). These petitions were filed in 2008 and the FCC took almost 7 years to respond; a minor yet telling example of the esteem the FCC places in the concerns of municipalities. In its 2015 decision, the FCC made clear that its 2007 rulings applied only to local franchise authorities, and not to state franchise authorities. This is significant, as several cable providers had successfully argued before state legislatures to remove franchise authority from localities and vest the state with such powers instead (Parker, 2011). The 2015 Order on Reconsideration determined that “all ‘in-kind payments’ regardless of whether they are related to cable services’ are part from the franchise fee” (Montgomery County Maryland v. FCC, 2017: 6). By collapsing most funding requests into the franchise fee, the FCC simultaneously made it easier for franchises to be awarded and hamstrung PEG organizations by abrogating the powers of local municipalities.

In 2017, Montgomery County, Maryland sued the FCC, arguing that the Commission had misinterpreted Sections 621 and 622 of the 1996 Telecommunications Act around what provisions counted against the 5% franchise fee, and what could be required by municipalities of cable providers above and beyond the franchise fee. The County also argued that the Commission had failed to justify its arguments in the 2007 and 2015 decisions. The US Court of Appeals for the Sixth Circuit sided primarily with the plaintiffs, agreeing that the FCC had failed to justify its actions. The Court also vacated the FCC's prohibition on LFA requests for I-Nets for video and telecommunications services across anchor institutions (the so-called “mixed-use” rule) (Montgomery County Marland v. FCC, 2017 ).

The FCC's response to the court came in 2018 with proposals to re-instate the cable-related “in-kind” service deduction from the franchise fee and to reinstate the mixed-use rule prohibiting the request of “non-cable services, such as broadband internet access, offered over a cable system by an incumbent cable operator” (FCC, 2018b: 1). These proposals were based on the Commission's “ongoing effort to reduce regulatory barriers to infrastructure investment” (FCC, 2018b, para. 15). The proposals found support from cable companies and their trade association, in particular the National Cable & Telecommunications Association (NCTA) whose comments speak of the burden on cable providers and accuse municipalities of fleecing cable providers and subscribers to “obtain products and services” rather than “a means of encouraging the deployment of valuable service in their communities” (Chessen et al., 2018a: 3). The NCTA's comments and replies appeal to neoliberal notions like “fair market value” (Chessen et al., 2018b: 2) while assuring a favorable FCC decision would “help promote broadband investment, deployment, and innovation, to the benefit of all Americans” (Chessen et al., 2018a: 1). To them, telecommunications localism—manifested here in municipal authority through franchising agreements—obstructs the free flow of the private market, which will bring the benefits of information and communication technologies to all Americans.

Groups representing municipalities and PEG organizations objected en masse to the FCC's proposal. In 2018 filing, NATOA et al. argued that neither the FCC's decision to include PEG expenses as part of the franchise fee, nor the decision that “local governments have no authority regarding cable operators’ use of the rights of way to provide non-cable services” are supported by the 1984 Cable Act (Werner et al., 2018: 2). Another group of petitioners aligned the debate directly with the tenets of localism:

subjecting these franchise requirements—particularly those authorized by the provisions of the Act, such as PEG and I-Net requirements—to the five percent franchise fee cap would have devastating fiscal impacts on local communities and their residents and would undermine the Cable Act's goal of promoting localism and diverse sources of information… (Horwood et al., 2018: 3)

Petitioners were particularly concerned that the Order would force localities to choose between funding PEG organizations or supporting other essential public services.

Despite objections, the FCC went ahead with its plan in 2019. In addition to cementing the above rules, it made clear that LFA's could not impose any fees in addition to the 5% franchise fee. The Third Report and Order also reaffirmed the decision to forbid LFA's from requesting noncable services like broadband infrastructure as part of the franchise negotiation (FCC, 2019; Scherer, 2020).

From 2007 to 2020 the FCC systematically disempowered local municipalities in their ability to regulate cable franchises, in their promotion of PEG channels and organizations, and in their ability to govern their local rights-of-way. At the same time, it amplified the market positions of cable and telecommunications companies by tacitly endorsing statewide franchising. In terms of telecommunications localism, the battle over local communication networks in cable franchising manifested in the squandering of the potential of PEG organizations to be community anchor institutions for digital equity initiatives. This potential was made dramatically apparent during the COVID-19 pandemic, where PEG organizations played crucial information and technical roles (Aufderheide et al., 2020). Currently, with the pandemic having entered a new phase, municipalities that were interested in following Fuentes-Bautista's suggestion of using cable franchises to ensure universal broadband and local voices through PEG organizations have found these tactics unavailable for the foreseeable future.

Case 2: municipal broadband

Municipal broadband is defined as the municipal funding, managing, and/or operating of a broadband network serving that specific municipality (Kruger and Gilroy, 2016). Municipal broadband emerged as an innovative solution in situations where a private market for retail broadband is absent or insufficient in terms of speeds, deployment, pricing, and/or competition. It has become a popular option in rural communities where the private market is largely absent because of a reportedly small return on investment, or where the incumbent is failing to upgrade its networks. Put clearly: municipal and community networks arise out of a community's desire for connectivity, a disfavor with the incumbents, in some cases, a tacit acknowledgement of the failure of the private market (Tarnoff, 2022). Municipal, or community networks as they are sometimes known, are not unique to the United States, and have found success in Canada (Shade and Powell, 2012), the United Kingdom (Ashmore et al., 2017), Sweden (Zager, 2019) and Australia, especially before the implementation of Australia's National Broadband Network (McShane et al., 2014).

In the United States, there are over 500 municipal broadband networks in operation (Kienbaum, 2019). Generally, municipal broadband networks are faster than incumbents, typically offer fiber-to-the-home, and are generally less expensive for the consumer (Leerssen and Talbot, 2017). They are thus an attractive option for municipalities across the country who lack connectivity or are dissatisfied with the incumbent. Presently, however, 16 states prohibit or inhibit municipal broadband networks (Cooper, 2023). In 2015, two entities, the Electric Power Board of Chattanooga, Tennessee and the City of Wilson, North Carolina petitioned the FCC to preempt their respective state laws that prohibited them from expanding their network footprint beyond their communities. The public comments to the proceeding reveal a familiar debate: proponents of local autonomy on one side, represented by various civil society organizations and municipal entities, and on the other side, the standard bearers of deregulation represented by cable and telecommunications companies and private market enthusiasts.

Organizations like the National League of Cities and NATOA argued before the FCC that state barriers to broadband are counterproductive to local efforts and to the goal of economic development. Comments from the Institute for Local Self Reliance noted how,

Wilson and Chattanooga are two clear examples of how local governments can expand access to fast, affordable, and reliable Internet access. State laws restricting local authority to decide whether a public investment or partnership will improve Internet access have delayed and inhibited the deployment of fiber optic networks. (Mitchell and O’Boyle, 2014: 1)

Demurring, others argued that municipalities should focus their attentions on crumbling infrastructure, rather than advanced telecommunications, and that the market failure of broadband is not as severe as opponents suggest (see Davidson and Santorelli, 2014). AT&T expressed skepticism toward “government owned networks (GON)” and their desire not to see GONs compete against private providers: “GONs can nonetheless discourage private sector investment because of understandable concerns by private sector entities of a non-level playing field. And any policy that risks diminishing private sector investment would be short-sighted and unwise” (AT&T, 2014: 2). AT&T and USTelecom told the FCC they preferred that the government subsidize private providers rather than endorse public options.

The FCC agreed with the petitioners and in February 2015 preempted laws in Tennessee and North Carolina to permit municipal broadband providers to extend to neighboring communities (FCC, 2015). The FCC specifically noted how municipal broadband can fill the gaps of the private market. It is worth quoting the FCC at length to best understand such a remark:

While private providers necessarily focus on the “bottom line,” municipalities can consider a wide range of community benefits discussed above in their decision-making process. EPB and Wilson exemplify this pattern, as their petitions make clear that community benefits were significant considerations in their decisions to deploy initially and in their current desire to expand their broadband offerings…The differing characteristics of municipalities and private entities explain why EPB, Wilson, and other similarly situated broadband providers in Tennessee and North Carolina can invest in broadband beyond levels of investment in the same communities by private sector entities. (para. 46)

Here, the FCC endorsed telecommunications localism by acknowledging that local providers know their communities best and may act in nimble ways that larger providers, predicated on quick returns on investment, cannot.

Tennessee and North Carolina sued the FCC over the preemption order in the Sixth Circuit Court. The Court reversed the FCC's decision, arguing that it did not have authority to intervene in relations “of power between a state and its subdivisions” (State of Tennessee; State of North Carolina v. FCC, 2016). While the FCC justified its power to preempt state law in Section 706 of the 1996 Telecommunications Act which vests it with the authority to encourage the rapid deployment of advanced telecommunications, the Court ruled that preemption in this instance was not part of the Commission's regulatory arsenal. By preempting state law, the Court argued, the FCC was indirectly usurping the states’ power to draw the boundaries between municipalities.

Two weeks later, the FCC announced that it would not appeal the Court's decision, thus tacitly endorsing the argument that states can do what they will vis-à-vis municipal broadband (Brodkin, 2016). Doubling down the following year, in a speech to the Media Institute's “Free Speech America” in 2017, then-Commissioner Michael O’Rielly called municipal broadband an ominous “threat to the First Amendment.” O’Rielly championed the Circuit Court's decision and accused municipal broadband networks of engaging in “significant First Amendment mischief” (O’Rielly, 2018). He cited a study from Elon University School of Law that found that Chattanooga and Wilson “have been notorious for their use of speech codes in the terms of service…prohibiting users from transmitting content that falls into amorphous categories like ‘hateful’ or ‘threatening.’” “How frightening” he concludes (p. 4). O’Rielly's remarks echo private provider's argument that municipal broadband “distort[s]” the free market (Kruger and Gilroy, 2016: 4). According to O’Rielly, telecommunications localism and the regulations and decisions that underpinned it undermine market freedom and must be abandoned. By failing to appeal and develop any regulatory alternatives, the FCC signaled its agreement.

Case 3: 5G and small cell deployment

The arrival of 5G mobile technology late in the second decade of the 21st century was met with an onslaught of industry hype. Mobile providers scrambled to promote their 5G networks, promising ultra-fast downloads, automated vehicles, and robotic surgeries. 5G refers to the fifth generation of mobile connectivity. 2G provides users with text messaging, 3G provides web browsing, and 4G provides video streaming. 5G is 10 to 100 times faster than 4G, allowing for perfect video calls and ultra-fast downloads (Thompson and Vande Stadt, 2017). 5G operates on three different frequency bands of electromagnetic spectrum. What was generally advertised on television by mobile providers is known as high-band, or millimeter wave 5G, with transmissions sitting on or above 24 GHz. Due to the fast-paced vibrations of these frequencies, millimeter wave 5G signals cannot travel far—at most 800 to 1500 feet. After that distance, signals require a boost in the form of a “small cell”—a shoebox-sized device attached to utility poles, telephone poles, and other infrastructure.

To operate a high-band 5G network mobile providers like AT&T, Verizon, and T-Mobile need to make use of municipal rights-of-way to install small cells. Akin to the critiques of local franchising authorities by cable operators, mobile providers argued to the FCC that municipalities were taking too long to approve requests for small cell placement and were charging excessive fees. The arguments regarded a Notice of Proposed Rulemaking issued by the Commission in 2017 to review “the regulatory impediments to wireless network infrastructure investment and deployment… conducted by State and local regulatory agencies” (FCC, 2017: 3, emaphsis added). From the outset, and akin to cable franchising, the FCC framed municipalities as bad actors who stymie deployment of advanced mobile networks for their own selfish reasons. Mobile providers jumped on this suggestion. Both Verizon and AT&T, for instance, noted they stopped small cell deployment in Lincoln, Nebraska because of excessive attachment fees levied by the city (Dano, 2018). In an earlier filing, AT&T rhetorically positioned itself responsive to “the American public's insatiable demand for data and connected devices,” in direct contrast to some municipalities which “continue to place obstacles in the way of wireless facility expansion, even for unobtrusive small cell equipment” (Vitanza et al., 2017: 5). AT&T's argument rests on three points: (1) cities were taking too long to approve permits, refusing permits for small cells, or placing burdensome requirements on the permit process; (2) cities were placing “unreasonable esthetic restrictions” on small cell deployment; and (3) cities were charging excessive fees for right of way permits and municipal pole access. Examples given include Bryan, Texas issuing a moratorium on all wireless facility permits; municipalities in Pennsylvania requiring small cells to be camouflaged; and Bloomington, Minnesota charging a $1500 application fee per node (Vitanza et al., 2017). According to AT&T, municipalities are losing out on small cell deployment and therefore on 5G networks, because of onerous restrictions. These restrictions, in turn, could cost upwards of $800 million in lost revenue (the FCC estimates the providers will spend upwards of $275 billion on 5G deployment in the coming years) (Vitanza et al., 2017). CTIA—the largest wireless trade association—full heartedly agreed with AT&T:

While some local governments recognize the urgent need for greatly enhanced wireless networks and act efficiently to approve them, others impose multiple barriers including long delays, onerous requirements and restrictions, and high fees. Those barriers are real and widespread. By dismantling them, the Commission will drive faster and more robust investment in the infrastructure needed to provide advanced communications services nationwide. (Power et al., 2017: 2)

In contrast, municipalities invoked the Tenth Amendment of the US Constitution, which reserves powers not spelled out in the constitution for use by states:

Since the Tenth Amendment to the United States Constitution protects state authority and local controls, including allowing local government to have authority over their own land use processes and public assets (enabling each community to deploy broadband and small cell facilities in a manner that makes sense for their specific community), local laws should govern. (Whitmore, 2017: 10)

The FCC released its decision in 2018 and established three rules for 5G small cell deployment. First, it created a shot clock giving municipalities a maximum of 60 or 90 days to render a decision on a telecommunication company's small cell application (the 90 days are there in case the small cells require a new structure built). Second, it limited the fees a municipality can charge an applicant to under $500 (for 5 cells) and limited recurring fees to $270 a year. Third, it limited esthetic concerns (such as requiring the cells be buried or spaced apart) to those that are “no more burdensome than those applied to other types of infrastructure deployment” (FCC, 2018a: 45). Taken together, the FCC preempted state and local laws that, in its opinion, “prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications” (FCC, 2018a: 5).

Locally oriented civil society organized fumed at the FCC's decision. According to Next Century Cities, a public interest group that promotes community broadband initiatives, “The order is a blatant effort by the FCC to strengthen the hand of carriers in negotiations with local governments over small cell deployment and to limit the ability of local governments to negotiate in the public interest around small cells” (Del Bianco, 2019: 1). Several cities sued the FCC, taking aim at the preemption of local authority. Significantly, wireless providers not only sided with the FCC but argued that “the FCC should have gone even further in restricting the authority of state and local governments” (City of Portland v. FCC, 2020: 30). In 2020, the court ruled in favor of the FCC in everything except its esthetic conditions. Once again, municipalities were stripped of their authority over public rights of way when it comes to telecommunications localism not only by the FCC but by the courts as well.

In many ways, the debate over small cells epitomizes the conflict over local communication networks in the United States and therein the fight for telecommunications localism. Here, we see municipalities and their allies battle giant telecommunication companies over the future of mobile communication and local rights of way. Both the FCC and the courts seem to side with the incumbents, placing their faith in the salience of the private market to resolve the situation. With the US investing $42.5 billion in broadband through the Broadband Equity Access and Deployment (BEAD) program, however, the issue over small cells may be revisited, as the country experiences a massive fiber optic buildout, which is necessary for small cells to operate.

Conclusion

Broadcast localism is an exclusively, and some have argued problematically, geographically bound concept, tethering local stations to their communities of license. While normatively (even romantically), this may make sense, from a content perceptive, defining what is “local” is difficult if not impossible. Shifting the localism debate to telecommunications renders the issue that much more complex. Still, as many argue, telecommunications are inherently local, finding their “last mile” in the home, the business, the school, or the hand (Sylvain, 2012). Moreover, community networking efforts like municipal broadband demonstrate the ongoing geographically local nature of telecommunications infrastructure; an “internet for the people” as Ben Tarnoff (2022) writes.

While this paper has focused exclusively on the United States, international readers have much to learn from these experiences. Localism may be American foundational belief; however, broadcast localism was adopted in the United Kingdom, Canada, and Australia (Ali, 2012, 2017). In telecommunications, municipal broadband in many countries, notably Canada, the United Kingdom, and Sweden, compete with national providers. Australia's maligned National Broadband Network coupled with the limited jurisdictional power of local governments, meanwhile, highlights the tension between the national and the local in contexts outside the United States (McShane et al., 2014). With respect to 5G, a recent white paper in the European Union advanced a universal approach to small cell deployment that effectively ends local intervention (European Commission et al., 2019). The United States is clearly not alone in its struggle over telecommunications localism. The market fundamentalism of modern telecommunications repeatedly abuts the lived realities of local communities; a phenomenon that seems more universal than unique to the United States.

In the United States, telecommunications localism is not only a debate between municipalities, providers, and the FCC, but also involve the courts, especially when it comes to broadband provision, be it fixed or wireless (to be sure, the courts were also heavily involved in broadcast localism as well). While “localism” has not found its way into the regulatory lexicon of telecommunications regulation, the ethos of localism is palpable. Rhetorically asked, what is the role of local communities in the governing of a medium (the internet) that has been described as decentered and global? Localism champions argue that the buck stops locally—companies put up poles, bury cables, and deploy small cells, all making use of public rights of way, while providers argue for the importance of free markets, and uninterrupted service. The balance with the FCC and the courts. Heretofore, both have sided with providers.

There is a recent trend in communication policy scholarship that ponders the application of broadcast-era policy goals to the digital realm. Applying public interest principles to social media (Napoli, 2019a), regulating data as a natural resource akin to spectrum (Napoli, 2019b), and implementing a public service internet (Unterberger and Fuchs, 2021) have all been proposed. This paper joins these thought experiments, asking if it is not time that the FCC adopt a localism principle for telecommunications that provides a normative framework for broadband negotiations. Put succinctly: in the early 2000s the FCC engaged in a soul-searching endeavor over the localism principle as it pertained to broadcasting. It is crucial the FCC conduct such local soul searching again, this time for telecommunications, to clarify both its relationship and future of the localism principle.

Footnotes

Acknowledgements

The author wishes to thank the editors of the special issue, the anonymous reviews, and Sydney Forde.

Declaration of conflicting interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Christopher Ali

Notes

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Telecommunications localism: the fight for control over local communication networks in the United States

Abstract

Keywords

Literature review

Broadcast localism

Telecommunications localism

Method and argument

Case studies

Case 1: local franchising

Case 2: municipal broadband

Case 3: 5G and small cell deployment

Conclusion

Footnotes

Acknowledgements

Declaration of conflicting interests

Funding

ORCID iD

Notes

References