CHARLESTON –Should West Virginia place limits on local governments competing with private companies to create broadband networks? That was a question lawmakers pondered Monday.

The Joint Standing Committee on the Judiciary received an overview Monday morning of the concept of state versus local broadband preemption. The briefing took place on day two of traveling legislative interim meetings at Stonewall Resort in Lewis County.

While broadband issues are typically tackled by the Joint Standing Committee on Technology and Infrastructure, Joint Judiciary Committee Co-Chairman JB Akers, R-Kanawha, said the issue of broadband preemption was a legal matter.

“A lot of (broadband) fits within the (Office of Broadband) or within the Technology and Infrastructure Committee,” Akers said. “For the purposes of just trying to get a framework in place, to get ready for broadband rollout – which we all hope happens sooner or later in West Virginia – preemption is part of what we have to look at. It’s something, I think, that fits within the scheme of the judiciary committees on both sides.”

Monday’s briefing reviewed the legal framework surrounding broadband preemption, specifically the balance of power between state and local governments regarding the ownership and regulation of internet service providers (ISPs) and broadband infrastructure.

Preemption deals with state laws that place restrictions on county and city governments on building out their own broadband internet networks. Garner Marks, general counsel for the state Department of Commerce, explained that West Virginia has no preemption laws.

“West Virginia doesn’t have any law on the books right now…that would preempt or prevent governmental ownership of municipal or county ownership of networks, internet service provider networks,” Marks said.

While not blocking local ownership of broadband networks, the Department of Commerce and the Office of Broadband view their role as working with private ISPs on expansion and new broadband construction.

“We don’t really work to compete with the private sector,” Marks said. However, the department is open to facilitating public/private partnerships. “Where private industry does seek to partner with local and county governments, we’re certainly happy to help facilitate that as best we can.”

Despite there being nothing in State Code preventing ownership of broadband networks by city and county governments, there are preemption laws that prohibit city and county governments from hindering construction and installation of broadband infrastructure.

Marks said at least 16 states have some level of preemption against local ownership of ISPs aimed at reducing competition with private ISPs and to provide ISPs a level regulatory playing field to avoid different rules in different regions. However, five states have repealed their preemption laws in the wake of COVID-19 in order to quickly expand broadband networks.

Marks said the Office of Broadband and the Department of Commerce are taking a neutral position regarding broadband preemption, leaving the issues up to lawmakers to determine.

“I don’t think so,” Marks said when asked whether the department had a preferred preemption framework. “We’re neutral, I think, on the idea. I think the current framework is working fine.”