Adrian Perkins is a former tech consultant for Shreveport, Louisiana and contributor to Wired Magazine and the New York Times. He is currently the 2018 Harvard Law School Student Body President
Telemedicine can solve the public health challenge of providing health care to rural areas if industry players can overcome current legal barriers to tech infrastructure. Telemedicine is real-time interactive communication between physicians and patients in remote locations. Remote interaction improves health coverage of rural areas by allowing physicians to conduct routine appointments and be more accessible. That accessibility improves health outcomes and drives down costs for providers and patients. The American Hospital Association’s telemedicine study showed these technologies result in decreases in rural patients’ admittance rates and average lengths of stay. This new means of medical coverage lowers costs for both medical providers and rural patients, reducing transportation costs on average by $5,718, lost wages by $3,431, and hospital costs by $20,841 according to the Rural Broadband Association. Telemedicine’s coverage capacity and lower costs are much needed to remedy inadequate rural public health access, but current legal barriers have regrettably stalled this remedy.
The primary obstacle to effective telemedicine use in rural areas is insufficiently developed tech infrastructure. To conduct real time interactive communication between patients and doctors, patients need access to reliable high speed Internet. Most rural areas do not have the financial capital to independently invest in a broadband network that would provide high-speed Internet to their inhabitants. Telecommunications (“telecom”) companies are the primary providers of high-speed Internet, but they invest very little in rural areas because such investments are not as profitable.
Finances aren’t the only barrier to the public sector providing affordable internet access services: courts, interpreting existing laws, often stand in opposition. The Sixth Circuit in Tennessee v. Federal Communications Commission, 832 F.3d 597 (6th Cir. 2016), allowed states to bar public municipalities from providing internet access services outside of their jurisdictions. Theoretically, municipalities can skirt state prohibitions permitted by Tennessee by annexing rural areas to fall within their jurisdiction. In practice, however, these actions are still subject to state prohibitions, as established in Hunter v. Pittsburgh, 207 U.S. 161, (1907). If the state rejects annexation, which is probable considering state hostility towards municipally-owned telecommunications. In essence, broadband networks are critical to telemedicine’s use in rural areas, and the courts have hamstrung their expansion.
Telemedicine can overcome these barriers if the Supreme Court overrules Tennessee, the federal or state legislation interpreted in Tennessee is amended, or affected counties adopt interlocal agreements.
Other Circuit courts look less favorably on telecom companies than the Sixth Circuit, making them prime venues for raising Tennessee-like litigation to the Supreme Court. The highest court could overrule Tennessee and allow municipalities to assist rural areas. State legislatures, permitted in Tennessee, essentially blocked cities from expanding their broadband services beyond their territories to underserved areas. The FCC unsuccessfully claimed it was statutorily authorized by § 706 of the Telecommunications Act of 1996 (“TA96”) to preempt state laws that limit broadband expansion and competition. The Sixth Circuit held that TA96 did not require municipal broadband expansion and lacked a clear statement granting the FCC preemptive powers over state legislatures.
Therefore, amending §706 of TA96 to make a clear statement allowing the FCC to preempt state law—as the Sixth Circuit requested—would also allow cities to provide broadband to their rural counterparts. Lastly, counties could implement “Lakewood Plans” in order to function as utility providers for cities and rural areas within their jurisdiction. Any one of these solutions could bring down the barriers preventing telemedicine from being effectively used in rural areas.
Tennessee could be overruled to allow cities to deliver broadband services to rural areas, but this outcome is unlikely.
The Federal Communications Commission (“FCC”) did not appeal the Tennessee holding, so the Supreme Court has yet to issue a final interpretation on TA96. Thus, other courts could split from the Sixth Circuit’s interpretation. For example, the D.C. Circuit has historically been less pro-telecom company. The Supreme Court will seek to resolve any circuit splits, creating an opportunity to overrule Tennessee. Likely plaintiffs are telecom companies seeking to enjoin public utilities from providing Internet service outside municipalities’ jurisdictions. However, odds are low that public utilities will risk running afoul of Tennessee because of the likelihood of expensive litigation. Furthermore, telecom companies would have the wherewithal to avoid a suit in a hostile circuit.
Repealing or amending legislation at the state and federal level could enable cities to provide broadband to rural areas.
In Tennessee, the court ruled that §706 of TA96, which requires the FCC to “remove barriers to broadband service and to promote competition,” fell short of providing “a clear statement” that would authorize the FCC to preempt a state law forbidding municipal broadband providers from expanding beyond their jurisdictions. If states repeal or amend legislation like North Carolina’s §160A-340.1(3)—which limits city telecommunication services to areas “within the[ir] corporate limits”—then cities could provide broadband service to rural areas. At the federal level, an amendment to TA96 §706 making “a clear statement” allowing the FCC to preempt state bars against municipal broadband expansion would also allow public utilities to provide broadband in rural areas.
Repealing or amending state and federal legislation to allow cities to provide broadband to rural areas requires effective lobbying and willing legislatures. Notable obstacles to statutory reform are telecom companies’ extensive political capital and rural areas’ lack thereof. The telecom industry flexed its muscles in 2016, spending over $84 million lobbying Congress. The telecom giants, AT&T, Verizon, and Comcast, have alone already spent over $11 million lobbying in the first quarter of 2017 in an attempt to shape the legislative landscape on issues such as privacy rules and net neutrality. In contrast, rural areas’ limited number of votes makes it difficult for them to capture their representatives’ attention, particularly when vying for that attention with telecom companies.
The American Medical Association (“AMA”) and large companies like Microsoft are the most probable candidates to successfully reform the state and federal laws harming rural areas. The AMA issued a press release in 2016 endorsing a Telemedicine Bill that had “the potential to remove barriers to new health care delivery models” and improve access for patients with “limited access to quality care.” Notably, in 2016, the AMA spent almost $19 million lobbying the federal government.
Coalition-building will be critical for telemedicine’s supporters to successfully reform state and federal laws, as telecom companies need only use a fraction of their lobbying efforts to match and overwhelm the AMA. Certain lawmakers could be valuable allies to the AMA in this matter. Legislators such as Senator Susan Collins—who bucked her own party’s Graham-Cassidy health care bill because it jeopardized rural access to healthcare—and Representative Kevin Cramer and the other forty House lawmakers supporting the Rural Airband Initiative (aimed at closing the rural broadband gap) are great potential partners for the AMA. Together, supportive lobbyists and legislators can overcome opposition and reform laws preventing telemedicine coverage in rural areas.
The third possible solution to delivering telemedicine to rural communities is interlocal government agreements allowing counties to provide broadband.
Interlocal agreements, referred to as “Lakewood Plans,” can succeed without a legislative amendment or risky litigation. These agreements have been prevalent since the 1950s, have covered services from dog control to law enforcement, are in states such as California, Ohio, and Missouri, and were explicitly listed as exceptions to state legislation in Tennessee. Under this approach, the utility would be provided by the county via agreement with relevant municipalities and rural areas, avoiding the bar to municipal broadband provision set by Tennessee.Lakewood Plans to provide broadband services could, however, prove unattainable for counties or regions because of prohibitive costs and lack of big city buy-in. Chattanooga, Tennessee, spent a whopping $169 million, and Lafayette, Louisiana, $125 million, to build fiber optic networks within their cities: a countywide broadband network could exceed that price range. Furthermore, interlocal agreements are completely at the discretion of participating municipalities, so cities within these counties might reject agreements forcing them to disproportionately fund because they have more resources than rural communities. As metropolitan areas often have utilities that provide their broadband services, an interlocal agreement could also result in disruption costs.
Federal and state funding and economic stimulation could overcome municipal resistance to interlocal agreements. The federal government’s Rural Health Care Pilot Program invested $417 million into sixty-nine projects over three years, Chattanooga received a federal grant of $111 million to pay for its broadband, and the Massachusetts Broadband Institute is charged with allocating $50 million to subsidize high speed internet access in rural areas. After overcoming costs, economic stimulation is a powerful incentive for bigger cities to opt into interlocal agreements at the county or regional level. The Northern Louisiana Economic Partnership is an example of an organization that unifies the economic interests of fourteen parishes (the equivalent of counties) to stimulate economic growth in the region. If counties or regional organizations harness available broadband funding, then interlocal agreements become more attractive to big cities by stimulating their economies, while also providing high speed internet to rural areas.
Overcoming current legal barriers or coming up with innovative workarounds to further telemedicine will not be easy, but if accomplished, could solve the public health challenge of providing health care to rural areas. Upending Tennessee is unlikely, but would give much needed relief to rural areas by allowing an alternative to the telecom companies that have neglected them. State and federal legislative reform would accomplish the same feat. Interlocal agreements skirt legal obstacles and may be the most feasible remedy for rural areas seeking broadband service. However it is achieved, broadband expansion is essential to enable telemedicine to reach those who need it most.
 As an example Arkansas’s Medicaid telemedicine program has improved maternal and child health outcomes in its rural areas.
 More specific examples include telemedicine programs savings estimates at UC Davis Health was $156 for patients per consultation, the Veterans Health Administration saved itself one billion dollars in just 2012, and Johns Hopkins saw a thirty two percent drop from its traditional hospital cost.
 Held that municipalities have no constitutional protection from state decisions to organize or reorganize municipalities.
 An interlocal agreement is an arrangement under which a local community conducts an activity jointly or cooperatively with one or more other governmental units. Local Government, Frug Law p. 539.
 Term named after Lakewood, California which became a city and contracted all its governmental services to Los Angeles County. Id. p. 539.