'Wi-Fi'ght Them When You Can Join Them? How the Philadelphia Compromise May Have Saved Municipally-Owned Telecommunications Services

When the Mayor of Philadelphia announced his plan to provide municipally sponsored Wi-Fi Internet access, Verizon, the incumbent telecommunications service provider organized lobbyists to block the plan. The compromise eventually struck between Pennsylvania municipalities and Verizon, which allows municipalities to offer telecommunications services after giving Verizon a right of first refusal has resulted in a certain degree of uncertainty in the future of municipally sponsored Internet access. This Note examines this compromise and argues that it represents an optimistic future for municipally sponsored telecommunications services. The Note first discusses the history of Wi-Fi technology and the development of the law regarding municipally owned telecommunications providers. It then addresses the likelihood that the Philadelphia plan will succeed and the plans implications on telecommunications providers. I. INTRODUCTION A. Wi-Fi Technology B. The Digital Divide and Legislative Responses C. Telecommunications Act of 1996 II. JUDICIAL INTERPRETATION OF SECTION 253 A. Abilene, Texas: The Meaning of "Any Entity". B. Missouri Municipal League C. Nixon v. Missouri Municipal League III. BUILDING A WIRELESS PHILADELPHIA A. Pennsylvania House Bill 30 IV. THE FUTURE OF MUNICIPAL BROADBAND V. CONCLUSION I. INTRODUCTION The advent of the Internet, like telecommunications media before it, has created a division between haves and have nots. And, as it was with the Internet's predecessors, private companies have been the primary suppliers of the services and equipment necessary to stretch the network across the country. However, the speed with which the world has become dependent on the Internet's vast array of resources is unparalleled in the history of mass media, and private providers in the United States are failing to supply the high demands. Furthermore, while the rate of growth is difficult for private companies to keep up with, the speed at which information travels over the Interact has increased staggeringly. The result: poor urban and rural citizens have been left disconnected or only connected at a snail's pace. Politicians and pundits have offered solutions to the problem, providing incentive plans for private telecommunications providers and public high-speed access points at schools and libraries, but for some cities, that is not enough. For these citizens, the digital divide grows wider. Municipalities, most of them small in size and budget, have tried to bridge this divide by providing high-speed Interact themselves. However, most have been landline-based and unable to stay afloat after high startup and maintenance costs left them over budget and under expectations. The municipality market participant experiment has been, for the most part, a municipally sponsored mess. Smelling blood in the water, it was not long before big telecommunications companies saw an opportunity to keep municipalities out of the marketplace for good and began lobbying state legislatures to prevent cities from providing high-speed access as a public good. After a host of judicial interpretations sided with the powerful companies, the brief movement toward municipally provided high-speed Internet access was stopped in its tracks. Then, in the summer of 2004, Philadelphia Mayor John Street unveiled a plan that would provide high-speed access to every Philadelphian without digging up a street or uncoiling a single foot of wire. By utilizing Wi-Fi--wireless technology made popular in coffeehouses and Internet cafes--the city could keep startup and maintenance costs low, while providing high-speed access to anyone with a wireless card: residents, businesses, and visitors alike. The plan was popular with citizens, politicians, and the media, all seeing this access as a previously undiscovered conduit across the digital divide. However, Verizon Communications, Inc. …