The Federal Trade Commission recently released a staff report on municipal wireless (“Municipal Provision of Wireless Internet”). The report is a lot of on-the-one-hand and on-the-other, but the report does a good job of laying out the current legal landscape and the various models of muni wireless that communities might pursue. The bottom line for the report is a decision tree (p. 48) intended to help municipalities assess the possibility of municipal wireless.
But the FTC analysis starts in the wrong place, and the key mistake is in not separating carefully a municipality’s role as service provider from its role as input provider. Start with the latter. As I emphasize in a recent paper on municipal wireless (“Who Should Regulate Entry into IPTV and Municipal Wireless?”), many municipalities will have dense networks of physical assets that will be attractive to a wireless entrant. City light poles are a good example: they are all over and sufficiently close that even short-distance wireless technologies (such as Wi-Fi) can rely on them.
For these municipalities, the question isn’t whether broadband is currently available from a private provider or will a new entrant provide service in a timely manner—the FTC’s starting questions—but rather whether the municipality has a valuable asset that it can turn into dollars by auctioning off access to those assets. That has been the pattern in the two cases that I consider in some detail in the paper (Philadelphia and San Francisco). Cities should be looking to maximize the value of their municipal assets, and shouldn’t leave those assets sitting idle if private providers are willing to pay for access to those assets.
The FTC report doesn’t discuss an issue raised by a recent Wall Street Journal story about use limits on muni wifi networks (“Wi-Fi Cities Adopt Web Filters to Block Some Forms of Content,” WSJ, October 4, 2006). Cities are discovering that the most popular uses of their wireless networks are porn and peer-to-peer music sites. Who woulda thunk it? Taking the view that their citizens wouldn’t be too happy to see tax dollars spent this way, the cities are installing filtering software to block this content.
We can quickly see why direct municipal provision of these services is going to raise difficult issues. If a city is providing the services for a fee—perhaps a subsidized fee—it will lose some of its “best” customers when the city installs the filters. Losing these users may make it harder to sustain the system financially. And note of course that these users are almost certainly citizens: what citizens say they want and what they actually want may be quite different. Plus filtering by the municipality will take us to the First Amendment issues raised in United States v. American Library Association, 539 U.S. 194 (2003).
Again, another reason to distinguish service provision from input provision. A city might not find it politically sustainable to allow an unfiltered municipal network and it will have to confront the First Amendment issues. A private provider paying to use city light poles will be steps removed from direct city provision and that may change the political constraints on services that we are seeing with porn filtering, but should the private provider engage in filtering, it can do so with less fear of First Amendment constraints.