David Post: Fibrant and the 6th Circuit

Published 12:00 am Sunday, August 14, 2016

About two months after entering law school, some 43 years ago, I wrote a letter to my parents — remember the good old days? — with my very confused reflections.

My law school acceptance letter suggested that before arriving I read “The Bramble Bush,” a book written by Yale Law Professor Karl Llewellyn in 1930 to prepare students for the study of law. Llewellyn explained that law was best learned by reading and analyzing cases. At its simplest, a case explains how a set of facts leads to a legal conclusion.

For example, suppose A kills B. In one instance, A may have plotted and murdered B in cold blood. In another situation, B may have tried to kill A, but A killed B in self-defense. Depending on the facts, the law reaches dramatically different conclusions.

My letter said that different judges seemed to find facts to support the conclusion they wanted. I described this example: suppose a situation has four facts, let’s call them A, B, C, and D. One judge might decide Facts A and B lead to the decision “yes,” I wrote, while another judge might decide “no” because of Facts C and D.

My 43-year-old letter may have described exactly what happened in the courts with North Carolina’s “level playing field law” regulating municipal broadband systems like Fibrant.

Congress passed the Telecommunications Act of 1996 which gave the FCC broad authority to “encourage the deployment … of advanced telecommunication capability to all Americans.” Between 2005 and 2010, Wilson and Salisbury built their own broadband systems to provide better telecommunication services to their citizens.

Private sector companies complained to the legislature that a municipality would have an unfair competitive advantage. In other words, Time Warner moaned that its $50 billion business and its 55,000 employees needed protection from Salisbury’s $5 million Fibrant with less than 25 employees. In 2011, North Carolina leaped to protect Time Warner and passed the “level playing field law” which restricted municipal broadband systems from expanding beyond their municipal borders.

Wilson sued North Carolina. Chattanooga, facing a similar law, sued Tennessee. (Salisbury did not join the lawsuit.) The technical legal question was about a legal concept called “preemption,” or which law controls, the federal telecommunications law or the state level playing field law.

The FCC held that federal law had control over state law. The Sixth Circuit Court of Appeals reversed the FCC and held that federal law did not have the specific authority to overrule state law.

What the courts were really addressing was whether to agree or disagree with the state legislature, which happens to be controlled by Republicans.

Again, back to my letter. Same facts, different judges, different decisions. Wonder why? Three of the five FCC commissioners were appointed by Democratic presidents. Two of the three Sixth Circuit judges were appointed by Republican presidents. The three Democratic appointed FCC commissioners and the one Democratic-appointed Sixth Circuit judge voted to allow cities to have their own broadband systems. The two Republican-appointed FCC commissioners and the two Sixth Circuit judges voted to support the Republican legislature that doesn’t want cities competing with private industry — even if it’s the only way to get essential technologies to small communities.

All eight of the judges on the FCC and the Sixth Circuit voted their personal political stripes. The late Supreme Court Justice Antonin Scalia once said it should be no surprise that judges tend to agree with the politically leaning presidents who appoint them.

The same set of facts led to one decision by judges from one political party and another decision by judges from another political party.

It is a bramble bush.

I only wish I had written my parents more than that one letter from law school.

Will the Sixth Circuit decision affect Fibrant? It shouldn’t in the near term. As allowed by state law, Rowan County has approved (and invited) Fibrant to expand beyond the Salisbury city limits. Longer term, it will be difficult for Fibrant to grow beyond Rowan County. It is up to Salisbury to deliver the goods.

Will the Sixth Circuit decision affect other cities and towns in North Carolina? Yes, they have an uphill climb and a regulatory web to navigate.

Municipal broadband has kept its promise. It has delivered better Internet to more people, and it has caused its competitors to lower their prices. Time Warner’s prices are lower and Internet speeds are higher in both Salisbury and Wilson than anywhere else in the state.

Internet service around the country, around the state, and around the city are not equal. The best example is three houses on a small street behind Catawba College are surrounded by, but not officially within, the Salisbury city limits. They cannot get Fibrant.

Fibrant’s challenge is to provide great service at competitive prices so that other municipalities ask it to expand to their area. Again, it is up to Salisbury to deliver the goods.

David Post is a member of Salisbury City Council.

Comments