Net Neutrality is an Urban Issue Too

We tend to think of the internet as a placeless space–an experiential reality that transcends geography in connecting people and information globally. However, the internet is really a place (warning: somewhat crude humor). And, apologies to Mr. Chappelle, it’s a real rather than a metaphorical place in the sense that its traffic is handled by servers and transmission facilities that occupy space on the earth. The internet is also a place in the extent that its usage varies among human beings occupying space on the earth. More to the point, places are (or are not) on the internet to the extent that their populations use (or don’t) the internet. The digital divide is a geographical divide as well as a social one. As the Pew Center for Research reports, rural areas have disproportionate numbers of people who don’t use the Internet. In the aggregate, urban and suburban areas have the same proportion of non-users, about 14%. However, this aggregation ignores the tremendous socioeconomic variation within cities and among diverse suburbs. Consider another risk factor for the digital divide: wealth.

If you have a college degree or live in a high income household, you’re much more likely to use the internet. Only 4% of college graduates do not use the internet compared with 41% of those without a high school degree. And only 4% of those with a household income of $75,000 or more don’t go online, versus 24% of those earning less than $30,000 per year.

These differences suggest that there are many suburbs and urban neighborhoods where Internet usage is virtually 100%, and many where it is very low. Further, statistics about internet usage obscure something more important: members of minority groups and low-income internet users are much more likely to use the internet in facilities like public libraries.

Which is why today’s decision by the FCC to regulate the Internet as a public utility is so significant. Most people rightly argue that Net Neutrality is important for the free flow of ideas, without restriction by network providers. But the decision also took a stand that truly recognizes that the internet is a public utility like drinking water or roads. Denial of access to that utility equals a denial of full participation in the society. It affects individuals and it affects communities that incur the costs of that denial on a social level.

Carl Smith’s wonderful book City Water, City Life made the point quite elegantly that part of the political movement to create public waterworks in American cities was the recognition by elites that they bore the cost (materially and physically from disease, and aesthetically from “filth”) that accrued when the public lacked access to clean water.

If cities bear the human capital and employment costs of the digital divide, why shouldn’t they likewise act to provide broadband access to their residents? Per Rebecca Ruiz and Steve Lohr at the Times:

Also at the Thursday meeting, the F.C.C. approved an order to pre-empt state laws that limit the build-out of municipal broadband Internet services. The order focuses on laws in two states, North Carolina and Tennessee, but it would create a policy framework for other states. About 21 states, by the F.C.C.’s count, have laws that restrict the activities of community broadband services.

Here, you can see where municipalities have acted to create public broadband, and where they have been preempted from doing so by state legislation, frequently aided by the templates helpfully provided by the American Legislative Exchange Council.

This interference with municipal power to provide needed utilities is nothing new. It’s been a recurrent response to cities asserting broader powers in order to provide for their residents’ needs. Want to know more? Gerald Frug’s book City Making: Building Communities Without Building Walls is a pretty good place to start, and his discussion of the idea that limits on city power have served as limits on the ability of particular classes of city residents (minorities, the poor, immigrants) to make claims on public resources leads to an interesting discussion of the legal architecture of spatial injustice in metropolitan areas. Though, if you want something more recent, Frug and fellow law professor David Barron have produced City Bound: How States Stifle Urban Innovation. Looks like I’ll have to read it now, particularly since it addresses Atlanta’s relationship to the State of Georgia, a particular interest of mine.

Municipal Preemption in the News

As I wrote recently, preemptive laws prohibit municipal governments from enacting particular policies. Preemption in the nineteenth century was extensive, as business interests used state legislatures tilted toward rural interests to thwart the efforts of municipalities to meet public needs through taxation and spending. Legislative limits are coming back in a big way, as Shaila Dewan reports in the New York Times today:

Darren Hodges, a Tea Party Republican and councilman in the windy West Texas city of Fort Stockton, is a fierce defender of his town’s decision to ban plastic bags. It was a local solution to a local problem and one, he says, city officials had a “God-given right” to make.

But the power of Fort Stockton and other cities to govern themselves is under attack in the state capital, Austin. The new Republican governor, Greg Abbott, has warned that several cities are undermining the business friendly “Texas model” with a patchwork of ill-conceived regulations. Conservative legislators, already angered by a ban on fracking that was enacted by popular vote in the town of Denton last fall, quickly followed up with a host of bills to curtail local power.

“The truth is, Texas is being California-ized, and you may not even be noticing it,” Mr. Abbott said in a speech at the Texas Public Policy Foundation, an influential conservative think tank, just before he took office last month. “Large cities that represent about 75 percent of the population in this state are doing this to us. Unchecked overregulation by cities will turn the Texas miracle into the California nightmare.”

So, local governments that serve 75% of the population of Texas are taking action to represent their residents’ best interests. I guess that really is a nightmare.

Pre-emption invokes a paradox for conservatives, like Mr. Abbott, who have long extolled the virtues of local control in some areas, like education, but now say uniform standards are necessary in others.

Oh.  Well, I’m sure that “necessity” is determined by public interest, and not by organized industrial groups….

The strategy was pioneered by tobacco companies 30 years ago to override local smoking bans. It was perfected by the National Rifle Association, which has succeeded in preventing local gun regulations in almost every state.

More recently, the restaurant industry is leading the fight to block municipalities from increasing the minimum wage or enacting paid sick leave ordinances in more than a dozen states, including Florida, Oklahoma and Louisiana. “Businesses are operating in an already challenging regulatory environment,” said Scott DeFife, the head of government affairs for the National Restaurant Association. “The state legislature is the best place to determine wage and hour law. This is not the kind of policy that should be determined jurisdiction by jurisdiction.”

This year, a combination of big money in state politics and a large number of first-time state legislators presents an opportunity for industries interested in getting favorable laws on the books, Mr. Pertschuk said. Increasingly, he said, disparate industries are banding together to back the same laws, either through the business-funded American Legislative Exchange Council, or by way of shared lobbyists. “There is going to be a feeding frenzy all year long in the state legislatures,” he said.

I’ve got some work that is nearing press that addresses the history of this aspect of state-municipal politics. I won’t spoil the plot, but this preemption is part of a long effort to suppress the democratic potential of American cities. This battle was expressed most influentially (perhaps notoriously) in the 1872 expression by Iowa Supreme Court Justice John Dillon of the notion that cities are constitutionally “creatures of the states.” It was purely coincidental that Dillon was a career railroad attorney, that railroads, the largest corporate enterprises of their day, were engaged in extensive battles against local governments over taxes and regulation, and that state legislatures were notoriously influenced by railroads. Indeed, the much-maligned headnote in Santa Clara County v. Southern Pacific Railroad that established the principle of corporate personhood was rooted in just such a dispute.

That’s not what’s happening today, right?

James Quintero, the director of the Center for Local Governance at the Texas Public Policy Foundation, said the pre-emption of city power was “new to the conservative movement here in Texas.” Still, he was ready to counter accusations of hypocrisy: “What we’re arguing is that liberty, not local control, is the overriding principle that state and local policy makers should be using,” he said.

OK. Liberty.

In Texas, many of the bills before the Legislature aim to prevent more cities from following Denton’s lead in banning hydraulic fracturing, or fracking. State Representative Phil King, a Republican representing a district near Denton, has sponsored two pre-emption bills. The first bill would require local referendums to be certified by the state as legal, and the other would require an assessment of the cost, in tax revenue, of any local attempt to regulate oil and gas.

Liberty it is.

The Stadium Scam and Cities as Instruments of Democracy

I’m working on the edits for an article I’ve been working on in some way, shape, or form since 2010. Yes. 2010. Such is academic publishing. The article (no spoilers) deals in chief with the ways that cities as legal corporations might potentially serve as instruments of public democracy by expressing and acting in the public interest. I counterpose this kind of democracy with a prevailing privatized view of political participation defined by the contribution to a candidate or a single-issue nonprofit advocacy group.

Spoiler alert (OK, a little one): I contend that public democracy is better. However, a big problem for cities, where people have routinely demonstrated a desire to practice public democracy, has been the renewed opposition of state legislatures, substantially influenced by the American Legislative Exchange Council (ALEC), to urban government action in response to democratic pressure.

What has made working on these edits tolerable and not a crushing reminder of the absurdities inherent in the academic publishing model is that current events keep reinforcing the argument. Today’s example comes from Deadspin, which, while nominally a sports blog, is routinely at the front of the line identifying the ways that sports (among other spectacles) have been leveraged by capitalists to transform cities and secure extensive public subsidies for billionaires (see also here and here).

The stuff that Bill Bradley describes could be happening anywhere, but it has particular poignance since it’s happening in Detroit, where local democracy has taken a considerable beating at the hands of capitalists and rural-suburban politicians). There, the city council has advocated requiring developers receiving public funds for major development projects to sign Community Benefits Agreements, legally binding contracts that would set terms by which the developer would be required to abide. These might address hiring, the number of construction and non-construction jobs to be established, the wages and benefits to be paid, and the proportion of local residents to be hired.

The precipitating events behind the proposed local law were many, but one stands out:

“We are allowing these large corporations—companies that could build a hockey arena without our money—to get in the corporate welfare line and take resources away from us,” Rashida Tlaib, a Michigan state representative who serves Detroit, told me. “In exchange for what?”

The hockey arena Tlaib mentioned is for the city’s beloved Red Wings, owned by pizza baron Mike Ilitch. The Ilitch family, whose net worth is estimated at $3.2 billion thanks in part to their Little Caesars pizza empire, received $284.5 million in public money to build a new, $450 million arena in the city’s Cass Corridor neighborhood. (They are desperately and vapidly rebranding it as the “arena and entertainment district.”)

While the Ilitch family was finishing up its honeypot stadium welfare deal last year—not to mention a wildly below-market rate $1 land transfer for 39 vacant parcels—they refused to sign a CBA that would ensure a certain percentage of permanent, non-construction jobs at the arena went to Detroiters. A group of locals formed the Corridors Alliance in an attempt to engage with the Ilitches, but their efforts were futile. The Ilitches did, however, agree to a mayoral executive order that demanded 51 percent of construction jobs go to residents and 30 percent of construction contracts go to local businesses. (The mayoral order, like Marathon’s hollow promise, is not legally binding.)

Take public money, the CBA reasonably insists, and deliver public benefits. Sounds about right? Not so fast:

The opposition made it all the way to the state capitol in Lansing during December’s lame duck session, where Republican State Representative Earl Poleski introduced House Bill 5977, which would “prohibit local units of government from creating a ‘community benefits ordinance.'” The bill, which died in December and was reintroduced in January, would ban Detroit’s proposed ordinance outright.

“House Bill 5977 sets up the state as a dictatorship telling local units of government that they cannot do what is best for their community, workers and residents when it comes to wages and benefits tied to economic development in that community,” Tlaib said in a statement.

I should also mention that the Detroit Regional Chamber Political Action Committee donated money to Poleski’s reelection campaign last summer, according to Secretary of State disclosures. And while it was a paltry and deeply stupid check for only $250, it’s worth asking why the Detroit Regional Chamber is propping up a state representative from Jackson, a county 80 miles west.

The reason of course, is that the concept of pre-emption, which plagued cities in the nineteenth century when urban special interests could leverage the anti-urbanism of rural legislators to stop cities from doing anything they didn’t like, has come back in with a vengeance. Whether it’s an idiosyncratic case like Detroit’s CBA initiative or the kinds of cookie-cutter pre-emption bills ALEC has distributed through the State Houses to try to kill off living wage bills or environmental protections, urban special interests of the stadium-building class have discovered that the states are a potent weapon against local democracy.