'Wi-Fi'ght them when you can join them? How the Philadelphia compromise may have saved municipally-owned telecommunications serv

Admittedly, the Wireless Philadelphia plan enjoys private financial support the likes of which may not be able to be collected by smaller towns or counties in rural areas. However, the fact that the compromise was able to take place proves that the dream of municipally-sponsored wireless is not as dead as it was thought to be after the Nixon decision. For example, proponents of municipally-sponsored wireless services in Denver are already lobbying for a bill that would enable municipalities to avoid being banned as long as they hold a citywide election to approve or disprove the plan. (122) Though the proposal is in its earliest stages, it is a spark that may yet be kindled so as to spread the message that municipally-sponsored wireless service is a desired public good all the way to Washington.

In fact, the question as to whether or not municipalities should provide telecommunications services could soon be answered in the halls of Congress. In 2005, two bills were proposed, one in the House and one in the Senate, each calling for clarification of the 1996 Act, and each calling for polar opposite results: one barfing municipalities from providing services and one barfing states from restricting municipality provided services. In the House, Representative Pete Sessions of Texas proposed the Preserving Innovation in Telecom Act of 2005. (123)

If passed, the bill would ban "any State or local government, [or] any entity affiliated with such a government" from providing telecommunications services when "a corporation or other private entity that is not affiliated with the State ... is offering substantially similar service." (124) This bill is less restrictive than the Texas Utility Act, which does not leave room for publicly provided services in the absence of similar privately provided ones. It is unclear, however, if the bill is more or less restrictive than the Pennsylvania Act, which places a fourteen-month deadline on privately provided services when none are being offered. The proposed bill details nothing as to what the outcome would be if a private provider began service after a municipality was doing so. If a private provider is allowed to enter the market after a municipality is already providing service, the potential for an unfair competition claim arises that does not exist with the Pennsylvania law.

According to Pennsylvania House Bill 30, Verizon must be offered the market and must choose not to proceed in order for a municipality to begin providing service. (125) It follows that Verizon waives its right to raise such an unfair competition claim. It is unclear how such a bill would be interpreted by a judiciary. Similarly, like the Pennsylvania Act, the House bill suffers the same vagueness in defining "substantially similar service," an interpretation that would surely come under judicial review if the bill were passed.

In the Senate, Senators John McCain of Arizona and Frank Lautenberg of New Jersey have proposed the Community Broadband Act of 2005. (126) The language of the bill consists of little more than a restatement of Section 253 but changes the term "any entity" to "any person or any public or private entity," (127) thus opening the door to municipally-provided telecommunications services. While this bill would dispel any guesswork as to whether or not a municipality is capable of providing wireless access, it remains uncertain how a court would interpret an unfair competition claim raised by a previously operating private provider. Though the ever-raging battle between competing private and public providers would continue in the passing of this bill, its existence makes clear that wireless broadband service is a desired public good.

V. CONCLUSION

It remains a matter of conjecture to predict which path, if any, Congress will choose to lead America back to its spot as the most internet-accessible country in the world. Still, these two bill proposals make clear Congress' interest in finding some way to bridge the digital divide and stay on pace with other countries' wireless penetration. Citing the United States' lagging pace in high-speed Internet service penetration, (128) Sen. McCain said, "[W]e cannot afford to cut off any successful strategy if we want to remain internationally competitive[,]" including enabling municipalities to help the United States catch up. (129)

Little buzz, however, has been made as to which bill would be more likely to become law. Without a federal statute dictating otherwise, the Philadelphia compromise remains the most promising option for municipalities that want to provide free or subsidized wireless broadband access. Wireless Philadelphia is scheduled for complete implementation by the summer of 2006. It may well be years before Congress implements a plan for fulfilling the goal it set out for itself in the 1996 Act to make reasonably priced communications services available to all the people of the United States. Until then, Philadelphia once again finds itself with a revolution taking shape in its legislative halls, and the country waits to see what will become of the Philadelphia compromise.

(1.) 541 U.S. 125 (2004).

(2.) Wi-Fi is also know as "Wireless Fidelity," a nonsensical phrase invented after its catchier abbreviation. A brief history of Wi-Fi, THE ECONOMIST, June 10, 2004, at 26, 27.

(3.) Id. at 26.

(4.) See Revision of Part 15 of the Rules regarding the operation of radio frequency devices without an individual license, First Report and Order, 4 F.C.C.R. 3493 (1989).

(5.) A brief history of Wi-Fi, supra note 2.

(6.) Id.

(7.) Id.

(8.) Id. at 27.

(9.) Id. at 26.

(10.) The Wi-Fi Alliance, Certification Programs, available at http://www.wi-fi.org/ certification_programs.php (last visited Apr. 3, 2006).

(11.) Skeptics Question Wi-Fi's Viability, EWEEK.COM, June 14, 2004, available at http://www.findarticles.com/p/ articles/mi_zdewk/is_200406/ai_n9520294.

(12.) For a list of McDonald's hotspots see http://www.mcdonalds.com/content/wireless.html.

(13.) William Underhill, Wireless in the World, NEWSWEEK INT'L ED., June 7-14, 2005, available at http://www.msnbc.msn.com/id/5076471/site/newsweek/.

(14.) Press Release, In-Stat, Hotspot Market's Maintaining its Heat (Oct. 12, 2004), http://www.instat.com/ press.asp?ID=1103&sku=IN0401289MU.

(15.) Press Release, Telecommunications Industry Association, U.S. Wireless Market to Reach $212.5 Billion by 2008 (Feb. 10, 2005), http://www.tiaonline.org/media/press_releases/ index.cfm?parelease=05-05. Estimates for the entire wireless market including equipment, service, and support is expected to reach $655.7 billion by 2007. Press Release, Telecommunications Industry Association, International Telecommunications Market Expected to Grow at Double-Digit Rates Reaching $2 Trillion in 2007 (Mar. 17, 2004), http://www.tiaonline.org/media/press_releases/ index.cfm?parelease=04-25.

(16.) U.S. Wireless Market to Reach $212.5 Billion, supra note 15.

(17.) International Telecommunications Union, ITU Broadband Statistics for 1 January 2005, http://www.itu.int/osg/spu/ newslog/ITUs+New+Broadband+Statistics+For+1+January+2005.aspx. According to the ITU study, 11.1% of inhabitants in the United States have access to broadband Internet services. South Korea led all countries with 24.9% penetration while China was second with 20.9% penetration.

(18.) Inquiry Concerning the Deployment of Advanced Telecommunications Capability, Second Report, FCC 00-290, at App. B, fig. A, (2000), available at http://www.fcc.gov/ Bureaus/Common_Carrier/Orders/2000/fcc00290.pdf.

(19.) Id. at App. B, fig. D.

(20.) Id. at App. B, fig. E.

(21.) Tim Karr, Is Cheap Broadband Un-American?, MEDIACITIZEN, Apr. 15, 2005, http://mediacitizen.blogspot.com/ 2005/(04/is-cheap.broadband-un-american.html.

(22.) 47 U.S.C. [subsection] 151 et seq. (as amended).

(23.) Thomas G. Krattenmaker, The Telecommunications Act of 1996, 49 FED. COMM. L.J. 1, 5-6 (1996).

(24.) 47 U.S.C. [section] 151.

(25.) 47 U.S.C. [section] 253(a) (emphasis added).

(26.) Id. at [section] 253(d).

(27.) 74 AM. JUR. 2D Telecommunications [section] 19 (2004).

(28.) 47 U.S.C. [section] 253(b).

(29.) City of Abilene, About Abilene, http://www.abilenetx.com/About/index.htm (last visited Apr. 3, 2006).

(30.) Abilene v. FCC, 164 F.3d 49, 51 (D.C. Cir.1999).

(31.) Id.

(32.) Id.

(33.) See Texas Public Utility Regulation Act of 1995, [section] 3.251(c) (Tex. Util. Code Ann. [subsection] 54.001, 54.201-02).

(34.) Id.

(35.) Tex. Util. Code Ann. [subsection] 54.201-02.

(36.) Abilene, 164 F.3d at 50-51.

(37.) The Public Utility Commission of Texas, Memorandum Opinion and Order, 13 F.C.C.R. 3460, para. 184 (1997).

(38.) Abilene, 164 F.3d at 50-51.

(39.) Id. at 52.

(40.) Id. (quoting Sailors v. Board of Educ., 387 U.S. 105, 107-08 (1967)).

(41.) 501 U.S. 452 (1991).

(42.) Id. at 460 (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985)).

(43.) Abilene, 164 F.3d at 53.

(44.) Id. at. at 54.

(45.) 145 F. Supp. 2d 741 (W.D. Va. 2001).

(46.) See Bristol v. Earley, 145 F. Supp. 2d 741 (W.D. Va. 2001). See also Va. Code Ann. [section] 15.2-1500(B).

(47.) Id. at 749 (citations omitted).

(48.) Id.

(49.) Id.

(50.) Id. at 750.

(51.) See Iowa Tel. Ass'n v. Hawarden, 589 N.W.2d 245 (Iowa 1999).

(52.) See Municipal Elec. Auth. v. Ga. Pub. Serv. Comm'n, 525 S.E.2d 399 (Ga. App. 1999).

(53.) See Nixon v. Mo. Mun. League, 541 U.S. 125 (2004).

(54.) See The Missouri Municipal League, Memorandum Opinion and Order, 16 F.C.C.R. 1157, para. 1 (2000) [hereinafter MML Memorandum Opinion and Order].