How cities can navigate their state’s broadband preemption laws
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The National League of Cities takes a look at how municipalities can expand broadband even when state authority may limit their ability to do so.
When state preemption laws on municipal broadband expansion are too restrictive, local leaders should learn how to work around bureaucratic red tape so they can deliver critical internet access to their communities, one expert says.
State-level legislative restrictions can exacerbate local digital divides and resident burdens, said Christy Baker-Smith, a director of research and data at the National League of Cities. Plus, they can cause cities to lose out on federal funding such as the recently announced $42 billion available under the bipartisan infrastructure law meant to support states’ efforts to improve broadband for under- and unserved communities.
A brief released last week by NLC found that 44% of states limit local decision-making on issues related to broadband services and programs in some way. NLC’s findings are based on data from 2019 to 2022 gathered by the Center for Public Health Law Research at Temple University’s Beasley School of Law.
In Texas, for example, local governments have limited authority over public utilities, including broadband providers. That means if a city government wants an internet service provider, or ISP, to deliver municipal broadband services, it must request an exemption and approval from the state commission, according to the brief.
Advocates of what NLC calls municipal broadband preemption say the practice may help standardize policy and program implementation across jurisdictions within a state, but, according to Baker-Smith, “the problem is … cities in rural areas and urban areas need very different things, so [the state should] let the cities decide what they need.”
One way cities can manage state prohibitions is by partnering with privately owned internet providers, which is already a requirement for municipal broadband expansion in a few states. However, creating those partnerships could prove difficult as many companies forgo providing services in certain areas, such as rural communities, because there is little financial motivation to do so.
In that case, local governments “would need to provide the company some kind of incentive,” Baker-Smith said. “The very low-hanging fruit is simply pointing out to a private company that expanding in a certain area would be beneficial to them.”
For instance, cities can advocate that their use of federal funds could help cover a company’s cost to expand broadband infrastructure by upgrading a cellphone tower from 4G to 5G capabilities, she said. That upgrade would not only benefit the local area but it would also attract additional customers that would have otherwise been unreachable by the ISP.
Alternatively, cities can forge partnerships with broadband providers with previously existing infrastructure. This could incentivize ISPs because cities are often prohibited from collecting profits from these agreements, Baker-Smith said, meaning local governments can tout that companies will receive extra profits from the expanded business.
Cities should also negotiate with state authorities to loosen or remove preemption laws for the benefit of the state. For example, state regulations that are too complex or burdensome may create hurdles for cities that prevent them from even applying for federal broadband funds.
“The states are aware that there’s all this money out there to improve infrastructure in the state, so what better time to say to the state, ‘Hey, we could apply for and get these dollars if you would change this particular small piece of legislation,’” Baker-Smith said. By emphasizing the fiscal advantages of local authority, cities could strengthen their negotiating power.
“Cities are needing to be and are proving they can be really creative and innovative at making things work to meet the needs of their residents,” she said.
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