Can a Mississippi city offer broadband service through its municipal electric utility?
Plain-English summary
The City of Okolona had been pushing for AG approval to offer broadband service through its municipal electric department. The AG had said no in 2018 and again in 2019. In 2021, the City's attorney came back a third time asking for reconsideration. The AG said no again, and explained why.
The reasoning had two parts:
1. Municipal utility authority is enumerated. Section 21-27-11(b) lists the kinds of "systems" municipalities can operate (water, sewer, electric, gas, etc.). Broadband is not on the list. Without statutory inclusion, a municipality lacks authority to provide it.
2. The 2019 Mississippi Broadband Enabling Act covers cooperatives, not cities. When the legislature wanted to authorize broadband over existing infrastructure, it did so for electric cooperatives (Miss. Code Ann. § 77-17-1 et seq.), not for municipal electric utilities. The cooperative-specific framework cannot be extended by analogy to municipalities.
The AG also reminded the City that AG opinions are advisory, not commands: an opinion can give civil and criminal protection to officials who request it and act in good-faith reliance, but the AG cannot prohibit the City from acting. The City could choose to provide broadband, but without the AG's protection, officials might face personal liability if a court ultimately ruled against the practice.
The AG also noted that whether the Okolona Electric Department might qualify as an "electric cooperative" under the 2019 Broadband Enabling Act was a fact question for the City, not the AG. The 2021 request didn't answer that.
Currency note
This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
What the opinion said for each audience, at the time
For Mississippi cities considering municipal broadband in 2021
The AG's position was settled: under Mississippi state law, cities lacked authority to operate broadband through municipal utility systems. Cities that wanted to enter the market had to either:
- Lobby the legislature to add broadband to § 21-27-11(b) (the system-definition statute), or
- Argue they qualified as an "electric cooperative" under the 2019 Broadband Enabling Act (a tough argument for traditional city-owned utilities), or
- Find some other statutory authority not addressed in the opinion (none was identified).
For Mississippi rural electric cooperatives in 2021
The 2019 Broadband Enabling Act gave cooperatives a clear path. They could own and operate broadband systems using their existing rights-of-way and infrastructure. This was a major change from prior law and let cooperatives compete in markets where private ISPs had not built out service.
For rural broadband advocates and federal grant administrators
In Mississippi, federal broadband expansion funding (e.g., the Rural Digital Opportunity Fund, BEAD program) was channeling primarily through electric cooperatives and private ISPs in 2021. Municipal-utility-based broadband was effectively off the table absent legislative change. That shaped how grant programs evaluated Mississippi service-area applications.
For Okolona officials
The AG's repeated denial meant the City had no AG cover for offering broadband. If the City proceeded anyway, individual officials could face liability claims. The opinion's reminder about advisory-only nature was a hint: the City was free to take the legal risk.
Common questions
Q: Why doesn't municipal utility authority cover broadband?
A: Mississippi municipal authority over utilities is statutory, not inherent. Section 21-27-11(b) lists what kinds of systems a municipality can operate. The list is detailed (water, sewer, electric, gas, garbage, etc.), and the AG read the omission of broadband as significant: if the legislature wanted to include it, it would have. The AG repeatedly declined to read in unstated authorities.
Q: What did the 2019 Mississippi Broadband Enabling Act do?
A: It authorized electric cooperatives (defined under Title 77, Chapter 17) to own and operate broadband systems. Cooperatives could use existing easements and rights-of-way to lay fiber, leveraging the rural electric distribution network for broadband expansion. The Act was specifically designed to address rural connectivity gaps.
Q: Was Okolona Electric Department an "electric cooperative"?
A: That was a fact question. Section 77-17-1 et seq. has specific definitions and structural requirements. The Okolona Electric Department was traditionally a municipal electric utility (city-owned), not a cooperative (member-owned). Whether some restructuring or interpretive argument could bring it within the cooperative framework was the City's question to decide, not the AG's.
Q: What's the difference between municipal utilities and electric cooperatives in Mississippi?
A: Municipal utilities are owned by a city or town and serve city residents through the city's governing structure. Electric cooperatives are member-owned, governed by an elected board of members, and typically serve rural areas not historically served by investor-owned utilities. Different statutory frameworks apply to each.
Q: Why does the AG say opinions are advisory?
A: Section 7-5-25 authorizes AG opinions and provides good-faith protection to officials who request them and rely on them. But AG opinions are not binding court decisions. A court could disagree with the AG and rule against the practice. Officials taking action contrary to an AG opinion lose the good-faith protection, but they're not violating any direct AG order.
Q: Could the legislature have changed this?
A: Yes, with a relatively straightforward amendment to § 21-27-11(b) adding broadband to the enumerated systems. The legislature has done this kind of expansion before for other utility services. The AG's role was to read the law as it stood, not to make policy.
Background and statutory framework
The municipal-broadband question is part of a longer-running policy debate. Many states have allowed cities to operate broadband through municipal electric utilities; some have prohibited it; some have detailed regulatory frameworks for it. Mississippi's 2018-2021 AG opinions placed Mississippi firmly in the "not authorized" camp, at least without legislative change.
The 2019 Mississippi Broadband Enabling Act was a partial response to the broadband-access gap in rural Mississippi. The legislature chose to enable cooperatives, not municipalities, partly because cooperatives have the most extensive rural infrastructure. Municipalities tend to serve incorporated areas already covered (or coverable) by private ISPs, while cooperatives serve the truly rural areas where broadband had been slowest to deploy.
The reconsideration history of the Okolona opinion is unusual. The AG had issued a 2018 opinion on the same question, then a 2019 opinion in response to a reconsideration request, and now a 2021 opinion in response to another reconsideration request. The 2021 opinion noted that the request "contains no new information, nor does it follow any relevant statutory change." The AG declined to revisit settled law without new facts or new statute.
Citations and references
Statutes:
- Miss. Code Ann. § 7-5-25, AG opinions are advisory; provide good-faith protection
- Miss. Code Ann. § 21-27-11(b), enumerates "systems" municipalities can operate
- Miss. Code Ann. § 77-5-201 to § 77-5-259, electric power association statutes
- Miss. Code Ann. § 77-5-257, electric power association authority
- Miss. Code Ann. § 77-17-1 et seq., Mississippi Broadband Enabling Act (2019), authorizing electric cooperatives to provide broadband
Prior AG opinions cited:
- MS AG Op., Barton (May 25, 2018), original opinion that municipalities cannot provide broadband
- MS AG Op., Barton (Mar. 15, 2019), first reconsideration, reaffirming 2018 opinion
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/05/G.Barton_May-17-2021-Request-for-Reconsideration-of-Opinions-Regarding-Okolonas-Authority-to-Provide-Broadband-Services-as-P.pdf
Original opinion text
May 17, 2021
Gene Barton, Esq.
Attorney for City of Okolona
Post Office Box 147
Okolona, Mississippi 38860-0147
Re: Request for Reconsideration of Opinions Regarding Okolona's Authority to Provide Broadband Services as Part of Its Municipal Utility System
Dear Mr. Barton:
The Office of the Attorney General has received your request for reconsideration.
Background Facts
On March 15, 2019, this office issued an opinion to you, in response to your request for us to reconsider another opinion issued to you on May 25, 2018. MS AG Op., Barton (Mar. 15, 2019); MS AG Op., Barton (May 25, 2018). The issue in those two opinions as well as the instant opinion is whether there is statutory authority for a municipality, the City of Okolona, specifically, to provide broadband service through its municipal utility system.
Question Presented
You ask us to reconsider two previous opinions issued by this office, MS AG Op., Barton (Mar. 15, 2019) and MS AG Op., Barton (May 25, 2018), and to opine that the City of Okolona is authorized to offer broadband service through the Okolona Electric Department. Your request contains no new information, nor does it follow any relevant statutory change.
Brief Response
A municipality does not have authority to provide broadband service to its residents as part of its municipal utility system. We reaffirm our two previous opinions to you.
Applicable Law and Discussion
In our May 2018 opinion, we stated that broadband services are not included in the enumerated systems that municipalities are authorized to provide as utilities. MS AG Op., Barton at *3 (May 25, 2018).[1]
One year later, upon your request for reconsideration of that opinion, we examined your assertion that our opinion violated Mississippi Code Annotated Section 77-5-257 and responded that Sections 77-5-201 through 77-5-259 "specifically apply to the authority of electric power associations." MS AG Op., Barton at *1 (Mar. 15, 2019).[2] It should be noted that opinions of the Attorney General's Office are advisory in nature only. While they afford the official who requests, and then acts in good faith in accordance with the opinion, some protection from civil and/or criminal liability, Miss. Code Ann. § 7-5-25, our opinions cannot prohibit the requestor from taking any action, nor require the requestor to take any action.
In that same opinion, we did, however, also direct your attention to the then-newly enacted "Mississippi Broadband Enabling Act," Mississippi Code Annotated Sections 77-17-1 through 77-17-15, which provides for electric cooperatives to own and/or operate broadband systems. We noted in that opinion, that the determination of whether the Okolona Electric Department qualifies as an electric cooperative under said statute is a factual determination made by the municipality. Your current request does not indicate whether such a determination was sought and/or obtained.
Finding no additional information sufficient to support your claim that a municipality has the statutory authority to provide broadband service through its utility system, we reaffirmed our previous opinion. MS AG Op., Barton at *2 (Mar. 15, 2019).
Today, with no additional information nor any statutory changes offered for consideration, we reaffirm our two previous opinions to you.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Misty Monroe
Misty Monroe
Special Assistant Attorney General
[1] The Legislature had not at the time of the 2019 reconsideration, nor has, at this time, added broadband to the extensive list in the definition of "system" in Section 21-27-11(b).
[2] Also, as noted in that opinion, we did not consider or answer whether any federal law or TVA regulation addressed your questions. Attorney General Opinions are intended to address only questions of state law. Official opinions cannot answer questions of federal law, questions of fact, mixed questions of fact and law, or questions of executive, legislative, or administrative policy.