State Legislation: Stopping Short of Repeal No Solution

What follows is an essay I wrote outlining my concerns with a bill (discussed earlier on these pages by both Mike and I) that attempted to carve out an exception to the Local Government Fair Competition Act for wireless networks. New Orlean’s wireless networks proved invaluable in the first days after the storm and opening it to the city’s citizens was enormously popular and useful. The idea was to allow New Orleans–and other cities–to deploy such systems quickly and to let citizens use them without intereference from the state.

That bill has apparently been abandoned due to a concern that its provisions didn’t match the call. (Letting mere citizens use the network apparently can’t be considered.)

I’ve decided to post it here because I think it serves as a practical case study of why simple repeal of the Local Government Fair Competition Act is to be preferred over trying to “fix” the bad law or carve out strategic exceptions to it. You can’t fix a mess by messing with it a little more. This is a whole lot like trying to fix a gumbo with a burned roux by “improving” the spices–it isn’t going to work and will only make things worse; the solution, as we all know, is to dump the pot.

No problem discussed below would appear if the law were just repealed.

We simply need the state legislature to restore to local communities the right to take care of themselves in their own ways and according to their own lights.

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No one can do anything but applaud the intent of the recently introduced “Municipal Wireless Internet Act.” It intends to protect New Orleans’ new publicly-available, free, wireless network from being all but turned off when the current state of emergency ends and the provisions of the 2004 “Municipal Fair Competition Act” are re-asserted. That’s right and fair. No one should be trying keep any city, but especially not New Orleans, from doing everything possible to serve its citizens with whatever resources it has at hand. This bill intends, as well, to extend the benefits of New Orleans’ successful experience in getting its wireless network going after the storm to all of Louisiana — and that intent is noble as well.

Unfortunately, the bill as it has come to stand does not serve those purposes as well as it should. There is a simpler and more effective way to serve those goals: all of South Louisiana should band together and demand the repeal of a law which has had the surely unintended consequence of outlawing an obvious, affordable, and demonstrably effective way of building a hurricane-resistant emergency communications system. Repeal — and only repeal — would also preserve the communities’ rights, as they struggle with an economy devastated by hurricanes and storm surge, to build infrastructure that could bring new commerce to town or help persuade those that have fled that there is something exciting and vital to which to return.

The law currently proposed has no advantages over repeal and carries more than a few disadvantages in relation to it.

The first and most disturbing issue is the apparent legally-imposed limit on speed to 1024 KB — less than 1/50th of what current, cheap, consumer-grade equipment is capable of today. That speed is an acceptable, even healthy speed today, but it won’t be for long . . . and it won’t be the sort of exciting service that will pull communities back together again, nor will it allow them a hand in determining their own future. For real broadband they will remain dependent on the same corporate providers who proved uninterested in supplying advanced services to South Louisiana even before two massive hurricanes hurt the economy and scattered the region’s people. The 1024 limit is designed to serve the economic interests of large corporations, not the interests of local communities. Those interests are not now, and will not in the future, be the same. The state should not enter this fight on the side of corporate profits and against the reasonable desires of towns and cities across South Louisiana to do for themselves what needs to be done. The 1024 limit is a fatal flaw in the current version of the law.

The governance provisions of the proposed “Municipal Wireless” act are also worrisome and serve to minimize rather than maximize the number of systems that are likely to be deployed. The title of the bill is something of a misnomer, since only parishes and no municipalities as such are authorized to build wireless networks. ONLY the “parish administrative head” may decide to deploy a wireless network. While this may not be a hardship for New Orleans — where the parish and the city are the same — it makes a mess of the politics of the state’s other large, hurricane-devastated city: Lake Charles. There, the “parish administrative head” is an appointive position under the police jury. The mayor of Lake Charles, who’d have the resources and control of the city property necessary to make such a program possible, would have no say in whether or not the city would be allowed to build a wireless network and neither, apparently, would any other elected official or body. Clearly that isn’t or at least shouldn’t be acceptable. Just as clearly, any hope that vesting all power in an executive to make this decision would have the effect of making it easier to go forward with building much-needed emergency infrastructure is a miscalculation. This provision will have the effect of forcing cities to go hat in hand to the police jurors of Louisiana. The historic tension between parish and city governments would surely reduce the number of towns which would try to build their own systems. The cities will have the resources and desire; the rural parishes will have only control. This is not a design which will encourage quick, widespread adoption.

Lake Charles and most other cities and towns are likely to have a problem with the governance portions of this bill, but Lafayette, the third major city below I-10 and the second most populous, has a separate set of issues. The same law that prevents New Orleans from keeping its wireless network up and running usefully has been the target for some months of a repeal campaign spearheaded by Lafayette. Self-determination should not be a privilege only of those cities that have decided on wireless technologies — especially not wireless technologies that are capped at speeds so low that they cannot be the basis for credible attempts to develop or redevelop local economies. This would leave communities forced to wait for actions by corporations that failed to find them profitable enough to serve adequately even before disaster struck.

If more cause for concern should be needed, it should also be noted that the law sunsets in five years. I presume that, since there is no state prohibition on owning a wireless network, parishes that built such networks would get to keep them for use by the government. The chief thing that would be lost, then, would be the right to let the public use what they’ve paid for. A sunset provision on public use dramatically reduces the incentive for communities to invest in this technology. Right now it seems wise to invest in a public communications infrastructure; our travails after the last set of storms demonstrated that. But the five year sunset provision, coupled with a cap on speeds that makes it clear that the system will not be allowed to grow in ways that directly benefit the public, will make it much more likely that cash-strapped “administrators” and those responsible for funding such projects will decide, at best, to buy “good enough,” cheap but dead-end systems or, at worst, some other pressing need the state hasn’t decided to should die in five years.

There really is a better, simpler way: repeal the “Municipal Fair Competition Act.” Then New Orleans could build any system it wanted to and could do anything it wanted to with it. So could Lake Charles and Lafayette . . . and Abbeville and Rayne, and Golden Meadow, and Erath and Cameron and every other city, town, or parish that wished to do so. They could build using whatever technology they thought wisest and keep it as long as they wanted to. They could partner with incumbents (who would know that they could go their own way if they wanted) or they could build local utilities whose only concern was local needs. Any city, town, or parish could invest in itself and its own future using the latest technology without any interference or “guidance” from the state . . . or from corporations whose core interests differ from their own.