The Sixth Circuit of the U.S. Court of Appeals struck down a 2015 order from the Federal Communications Commission that would have allowed municipally-owned telecommunication companies to expand beyond their traditional service footprint. In February of a year ago the FCC voted 3-2 to try and legally pre-empt laws in two states: North Carolina and Tennessee.
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The ruling dealt a blow to the FCC and its order, which was passed in February 2015 in a bid to check regulations that forbade or severely restricted the expansion of public broadband services outside of municipalities in North Carolina and Tennessee.
Shortly after that, the FCC announced they’d use Section 706 of the Communications Act to declare portions of those laws invalid, potentially opening the door to similar battles in additional states. Or as one former FCC commissioner puts it, “Let’s be clear: industry-backed state laws to block municipal broadband only exist because pliant legislators are listening to their Big Cable and Big Telecom paymasters”, says Michael Copps, who’s now an advisor for the nonprofit watchdog group Common Cause. The three judges said the FCC’s preemption of power from the states requires at least a clear statement to that effect in authorizing federal legislation. The ruling also makes it clear that the court did not need to debate “whether 706 provides the FCC any preemptive power at all”, or whether Congress could imbue the FCC with such authority.
The decision was essentially unanimous, with judges John Rogers, Joseph Hood, and Helene White all voting to reverse the FCC’s order.
A court has shot down the FCC’s attempt to pre-empt protectionist state broadband laws that hinder municipal broadband.
The FCC’s original order stemmed from requests by muni-broadband providers in Wilson, North Carolina and Chattanooga, Tennessee. If the FCC had won, cities and towns in other states could have followed suit and asked the FCC to overturn restrictive laws throughout the nation.
FCC chair Tom Wheeler criticized the court’s ruling, saying, “While we continue to review the decision, it appears to halt the promise of jobs, investment and opportunity that community broadband has provided in Tennessee and North Carolina”.
In an email statement released after today’s court ruling, Wheeler said public broadband services “should not be thwarted by the political power of those who, by protecting their monopoly, have failed to deliver acceptable service at an acceptable price”. Wheeler goes on to say that the FCC will “consider all our legal and policy options to remove barriers to broadband deployment” and that he would be happy to testify in cases to repeal “anti-competitive broadband statutes”.
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