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Universal Broadband Access As Antitrust and Telecommunications Policy Hannibal Travis

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Universal Broadband Access As Antitrust and Telecommunications Policy Hannibal Travis American University Law Review Volume 55 | Issue 6 Article 1 2006 WI-FI Everywhere: Universal Broadband Access as Antitrust and Telecommunications Policy Hannibal Travis Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Corporation and Enterprise Law Commons Recommended Citation Travis, Hannibal. “WI-FI Everywhere: Universal Broadband Access as Antitrust and Telecommunications Policy.” American University Law Review 55, no.6 (August 2006): 1697-1880. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. WI-FI Everywhere: Universal Broadband Access as Antitrust and Telecommunications Policy Keywords Broadband Industry, Telecommunication, Municipal Broadband, Antitrust, Verizon Communications This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol55/iss6/1 8/12/2006 2:14:35 PM WI-FI EVERYWHERE: UNIVERSAL BROADBAND ACCESS AS ANTITRUST AND TELECOMMUNICATIONS POLICY * HANNIBAL TRAVIS TABLE OF CONTENTS Introduction.......................................................................................1698 I. The Development and Market Structure of the Broadband Industry ...................................................................................1705 A. Broadband Access in its Historical Context....................1705 B. From Dial-Up to Broadband Internet Access..................1711 C. Natural Monopoly and Network Industry Characteristics of Broadband...........................................1715 D. The Lack of Effective Competition in Many Broadband Markets ..........................................................1720 II. Broadband Deregulation and the Supreme Court’s Telecommunications Trilogy of 2004-2005 ............................1726 A. Historical Context of the Telecommunications Trilogy.1726 B. State Law Restraints on Municipal Broadband: Nixon v. Missouri Municipal League (2004) ............................... 1728 C. Monopolization of Telecommunications Markets: Verizon Communications LLC v. Law Offices of Curtis V. Trinko (2004) ................................................................ 1736 D. The End of Open Access?: National Cable and Telecommunications Association v. Brand X Internet Services (2005) ............................................................... 1751 III. All Legal Prohibitions on Municipal Broadband Should Be Lifted........................................................................................1762 * Assistant Professor of Law, Florida International University College of Law. The Southeastern Association of Law Schools selected this Article to be presented to the New Scholars Workshop during its annual meeting in July 2006. The author thanks his parents for providing him with abundant opportunities for seeing and reading about the world. He also thanks Associate Dean Ediberto Román and Professor Mark Seidenfeld for very helpful comments and suggestions, and Senior Articles Editor Phil Schreiber and Editor-in-Chief Melissa A. Troiano of the American University Law Review for their excellent work during the editing process. 1697 8/12/2006 2:14:35 PM 1698 AMERICAN UNIVERSITY LAW REVIEW [Vol. 55:1697 A. Proposed Federal Legislation on Municipal Broadband ........................................................................1762 B. State Law Restraints on Municipal Broadband and Wi- Fi Projects..........................................................................1765 C. Lifting All Legal Prohibitions on Municipal Broadband Will Accelerate the Advent of Universal Broadband Access.............................................................1771 1. Barriers to universal broadband access: The digital divide along racial, economic, educational, and geographic lines...................................................1772 2. Citywide Wi-Fi bridges the digital divide and benefits consumers .....................................................1780 3. Subsidies promote universal broadband access in Canada, Europe and Asia ...........................................1787 4. Municipal broadband represents a sound investment ...................................................................1794 5. Federal preemption of impediments to municipal broadband should extend to state constitutional restrictions...................................................................1798 Conclusion .........................................................................................1799 How America deploys broadband is the central infrastructure challenge our country faces . How we get it done affects not only how many megabytes of information our computers can download, but . what kinds of opportunities will be available to those in our society who do not share fully in our general prosperity.1 Municipal networks can play an essential role in making broadband access universal and affordable. We must not put up barriers to this possibility of municipal involvement in broadband deployment. Community broadband networks have the potential to create jobs, spur economic development, and bring a 21st century utility to everyone.2 INTRODUCTION Cheap, ubiquitous high-speed Internet access promises to accelerate economic growth, create new jobs and industries, advance education and lifelong learning, improve health care decision- 1. FED. COMMC’NS COMM’N, INQUIRY CONCERNING HIGH-SPEED ACCESS TO THE INTERNET OVER CABLE AND OTHER FACILITIES, 17 F.C.C.R. 4798, 4872 (2002) [hereinafter HIGH-SPEED ACCESS INQUIRY 2002] (dissenting statement of Commissioner Michael J. Copps). 2. 151 CONG. REC. S7298 (daily ed. June 23, 2005) (statement of Sen. Lautenberg). 8/12/2006 2:14:35 PM 2006] WI-FI EVERYWHERE 1699 making, and raise living standards.3 Conversely, foregone broadband access by poor and underserved Americans is imposing high economic and social costs.4 As much as $1 trillion in economic growth may be delayed due to structural and legal limitations on U.S. broadband access.5 Americans without broadband will be unlikely to participate in the estimated $1 trillion market for electronic commerce conducted over the Internet.6 Many children and young people in households without broadband are unnecessarily denied the opportunity to leverage the Internet’s rich resources for study and research purposes, so as to achieve their full potential.7 And families without broadband will struggle to become “active and informed participant[s] in their own health care” by finding potentially lifesaving treatments online.8 Since 2004, city officials across the United States have increasingly endorsed the idea of providing universal broadband access to their 3. FLORIDA MUNICIPAL ELECTRIC ASSOCIATION (FMEA), THE CASE FOR MUNICIPAL BROADBAND IN FLORIDA 2 (2005), http://www.baller.com/pdfs/fmea_white_paper. pdf. 4. See id. at 17 (asserting that towns without high-speed broadband access will lose jobs and people in underserved locations will not have access to important economic, medical, and educational opportunities). 5. See Charles H. Ferguson, The Broadband Problem: Anatomy of a Market Failure and a Policy Dilemma 5 (2004) (“[T]he economic costs of constraints to broadband deployment have already been large and could amount to hundreds of billions of dollars over the next decade, possibly reaching $1 trillion.”); Thomas Bleha, Down to the Wire, Foreign Aff., May-June 2005, at 111, 121, available at http://www.foreignaffairs.org/20050501faessay84311/thomas-bleha/down-to-the wire.html?mode=print (noting that the $1 trillion figure reflects only the economic costs of lagging broadband deployment and does not reflect costs associated with foregone opportunities for telecommuting or accessing medical care, education, or entertainment). 6. See FERGUSON, supra note 5, at 32 (adding that many leading firms from diverse industries now conduct much of their business over the Internet). 7. Cf. Lisa Guernsey, The Library as the Latest Web Venture, N.Y. TIMES, June 15, 2000, at G1, available at http://www.nytimes.com/library/tech/00/06/circuits/ articles/15 book.html (describing how electronic access to information is becoming more common and more central to educational process); David Hoye, Use of Public Libraries Grows with Internet, SACRAMENTO BEE, Sept. 19, 2002, at D1 (“Pew Internet and American Life survey released this week found that sevety-three percent of college students use the Internet more than they use the library.”). 8. Information Infrastructure Task Force, The National Information Infrastructure: Benefits and Applications (1993), http://www.ibiblio.org/nii/NII-Benefits-and- Applications. html; April KirkHart et al., Helping Our Children Succeed: What’s Broadband Got to Do with It?, 3 CHILDREN’S PARTNERSHIP ISSUE BRIEF (June 2006), http://www.techpolicybank.org/AM/Template.cfm?Section=Publications_from_The _Children_s_Partnership&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=9 418 (Internet access “can improve children’s health and their access to health care by improving the quality of care, helping children and parents manage chronic conditions more effectively from home (producing cost savings), allowing access to vital health information, [etc.]”). 8/12/2006 2:14:35 PM 1700 AMERICAN
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