Regulatory Conflicts Between BEAD Funding and State Preemption Statutes Restricting Municipal Broadband: A Proposal to Adopt the Jurisprudence of Police Power and Utilities Law

Abstract

In 2021, Congress enacted the Broadband Equity, Access, and Deployment (BEAD) program, which will fund broadband infrastructure across the nation. Localities may build their own municipal networks, but those networks are unpopular with neoliberals who disdain government intervention in markets, and those parties have enacted laws in many states to restrict municipal networks. These restrictions often directly contradict the BEAD funding program. This article explores how the impasse can be at least partially ameliorated with a new assessment of the public interest in local network development and a new appreciation of older precedents from utilities law.