Free Wi-Fi – Why do laws prohibit this?

I’m interested in the fate of Senate Bill 1294, which was introduced by Frank Lautenberg and John McCain in June of this year. It seems to be the perfect antidote to legislation passed last year in Louisiana, which I’ve already discussed briefly, that limits cities’ ability to offer free wifi to their citizens.

Before discussing the legal aspects of the Louisiana law and Senate Bill 1294, let me digress to quickly comment on something that ordinary citizens are rarely aware of.  Politicians and lobbyists take great pains to name their proposed legislation, not unlike the nervous young couple trying to decide what to call their first born child.  But, the politicians don’t act nervously; they act strategically. 

Thus, the law passed by Louisiana was called the "Local Government Fair Competition Act."  This name suggests that it has to do with local government and fair competition.  Who could be against that?  Well, "who understands it?" would be another important question, but let’s not get into a weird debate about whether our laws should be properly labelled like our food products.

If you read the first substantive section of the Louisiana law (particularly sub-part 6) you’ll start to see that the law was enacted to benefit ‘private providers’ of ‘cable television services, telecommunications services or advanced services.’  Now who, exactly, might those entities be? [Pause while we play the Jeopardy theme song].  Time’s up.

If you answered ‘companies who provide phone and cable television services’ you get full credit.  Extra credit would awarded if you named specific companies that provide these services.

Now, let’s talk about ‘advanced services.’  What do you think that term means?  Well, if you read the next section of the law you’ll discover that advanced services means means ‘high-speed Internet access capability in excess of 144 kilobits per second both upstream and downstream."  And, if you know anything about 802.11 and other forms of wireless networking (aka ‘Wi-Fi’) you’d know that all of this stuff would be considered ‘advanced services.’  After all, cellphones can browse the web at about 144 kbps.  So pretty much anything faster than cellphone throughput is broadband that triggers the Louisiana law.

So, what does that mean?  Well, it means that if you are the mayor of a city in Louisiana and you decide to help out your populace by sharing basic high-speed internet access for free you would be running afoul of this law.  Now here is where you keen students, who were previously doing so well answering questions, are going to have a difficult time.  What is the beneficial purpose of this law?

Hint: remember the word ‘discrimination.’

The law seeks to prevent discrimination.  Basically, the concept is that, since municipalities regulate entities that provide cable TV, phone service and ‘advanced services’ they shouldn’t be allowed to provide those services themselves.  That, we are given to understand, would be discriminatory.

Well, actually, if cities actually did offer telecommunications services that competed with entities they regulated (and somehow made the regulations easier on them than on their competition), it would be more like unfair.  But let’s not quibble about verbiage.  Let’s focus on when the Louisiana law was passed (2004), and ask what were cities doing then that threatened the telcommunications industry.

As far as I remember, in 2004 there wasn’t much of a threat that cities like New Orleans were going to start providing cable television services (that’s a capital-intensive project with serious administrative overhead).  Nor were they likely to start offering phone services.  But, around the time that Louisiana passed this law it was big news that Philadelphia was planning on offering free wifi to citizens.  And this, we will recall, is what crafty legislators call ‘advanced services.’

Apparently, Louisiana’s law was among a slew of similar laws that were passed by state legislatures around the country.  I wonder how many legislators who voted in favor of this type of legislation really understood what the law was REALLY for.

Answer: probably not too many.

In the wake of New Orleans’ recent effort to deploy free wifi in key parts of the post-Katrina ravaged city, there has been some commentary about the prudence of laws like the one that Louisiana passed.  I talked to a friend of mine, who is a state legislator and who is tech-savvy and fair-minded, and he was surprised about this law.  Yet, he candidly admitted that he might well have voted for it.  Hey, who can blame him?  It had an innocuous name and it seemed to be for a good purpose.  Unless, of course, you are an average citizen and you somehow like the idea that your municipality could offer you free wifi service.  There probably are a few radical thinkers like that, but most of them were asleep when this legislation was passed and the battle cry was not sounded.

But, some of them are awake and they’ve set the alarm-clock for everyone else.  If you like free wifi (and you don’t like the law that Louisiana and other states have adopted), then your like-minded friends to write their U.S. Congressperson and tell them how much they adore Senate Bill 1294.  This bill says:

No State statute, … may prohibit or have the effect of prohibiting any public provider from providing, to any person or any public or private entity, advanced telecommunications capability…

The law takes care of the ‘discrimination issue’ by simply saying that if the municipality (i.e. the ‘public provider’) provides ‘advanced telecommunications services’ then :

it shall apply its ordinances and rules without discrimination in favor of itself or any advanced telecommunications services provider that it owns.

This is simple solution to a non-problem, and one that allows municipalities to offer free broadband access to its citizens.  Oh, you ask, what is the name of this bill?  It is called, descriptively enough, ‘The Community Broadband Act of 2005’