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 AG reaffirmed its earlier conclusion that broadband is absent from the statutory list of municipal utility systems in § 21-27-11(b). It also noted that the Mississippi Broadband Enabling Act provides for electric cooperatives to own or operate broadband systems. Whether Okolona Electric Department qualifies as an electric cooperative under that Act was a factual determination for the municipality, and the new request supplied no answer to it.

The AG also reminded the City that AG opinions are advisory: they afford some protection to officials who request and act in good-faith reliance on them, but cannot prohibit or require any action by the requester.

The AG noted that whether the Okolona Electric Department qualifies as an "electric cooperative" under the 2019 Broadband Enabling Act was a fact question for the municipality. The 2021 request did not say whether the City had made that determination.

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 reaffirmed its position across three opinions: a municipality lacks authority to provide broadband service as part of its municipal utility system. A footnote observed that broadband remained absent from the definition of "system" in § 21-27-11(b). The AG separately noted the Broadband Enabling Act's provision for electric cooperatives and left Okolona Electric Department's possible status under that Act unresolved.

For Mississippi electric cooperatives

The opinion pointed to the Mississippi Broadband Enabling Act (§§ 77-17-1 through 77-17-15), which "provides for electric cooperatives to own and/or operate broadband systems." It did not determine whether Okolona Electric Department qualifies under that Act.

For Okolona officials

The opinion reaffirmed that AG opinions are advisory only. They give an official who requests and acts in good-faith reliance on an opinion some protection from civil or criminal liability under § 7-5-25, but they cannot prohibit or compel the City's action. The AG declined to opine that the City could offer broadband and reaffirmed its two prior opinions.

Common questions

Q: Why doesn't municipal utility authority cover broadband?
A: The AG referred to its 2018 view that broadband was absent from the enumerated municipal utility systems. A footnote said the Legislature still had not added broadband to the definition of "system" in § 21-27-11(b).

Q: What did the 2019 Mississippi Broadband Enabling Act do?
A: As the AG described it, the Act "provides for electric cooperatives to own and/or operate broadband systems." The opinion did not analyze the Act's other provisions or determine whether Okolona Electric Department qualifies as a cooperative.

Q: Was Okolona Electric Department an "electric cooperative"?
A: The opinion called that a factual determination for the municipality. It said the City's latest request did not indicate whether such a determination had been sought or obtained.

Q: What's the difference between municipal utilities and electric cooperatives in Mississippi?
A: This opinion did not define either entity type. It said the earlier response found the cited electric-power-association statutes specifically applied to those associations, and pointed the City to the Broadband Enabling Act's provisions for electric cooperatives. Whether Okolona Electric Department qualified under that Act remained a fact question for the municipality.

Q: Why does the AG say opinions are advisory?
A: The AG said an opinion affords some protection from civil or criminal liability to an official who requests it and acts in good-faith accordance with it, under § 7-5-25. An AG opinion cannot prohibit or require the requester's action.

Q: What would it take to change this result?
A: A change in the statute. A footnote to the opinion observed that 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)." The AG read the law as written and reaffirmed its prior opinions absent any new information or statutory change.

Background and statutory framework

Section 21-27-11(b) defines municipal utility "systems," and the AG reaffirmed its earlier view that broadband is not among them. The opinion's footnote noted the Legislature had not added broadband to that definition.

The 2019 Mississippi Broadband Enabling Act (§§ 77-17-1 through 77-17-15) provides for electric cooperatives to own or operate broadband systems. In an earlier opinion to the same requester, the AG pointed out that whether the Okolona Electric Department qualifies as an electric cooperative under that Act is a factual determination for the municipality. The 2021 request did not indicate whether such a determination had been sought or obtained.

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.