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Court Stops FCC From Gutting State Protectionist Broadband Laws

A court has shot down the FCC's attempt to pre-empt protectionist state broadband laws that hinder municipal broadband. For years we've noted how incumbent ISPs have written and lobbied to pass state laws protecting their networks from the threat of municipal broadband. Some of these laws ban municipal broadband; others simply saddle towns looking for public or public/private broadband alternatives with onerous restrictions. In February of last year the FCC voted 3-2 to try and legally pre-empt laws in two states: North Carolina and Tennessee.

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Municipal broadband deployments in Chattanooga, Tennesee and Wilson, North Carolina (EPB Broadband and Greenlight, respectively) petitioned the FCC to take action against these laws, arguing they were hindering their ability to expand -- solely to the benefit of national incumbents.

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. But Tennessee and North Carolina sued the FCC, claiming the agency was violating state rights.

Letting companies like AT&T and Comcast write bad state laws that hurt broadband consumers and state businesses? Perfectly ok, however.

Regardless, the FCC's effort has failed (for now). In a new ruling (pdf), the US Court of Appeals for the Sixth Circuit argues that the FCC's pre-emption of these state restrictions must be reversed, because Section 706 doesn't clearly provide the FCC with the proper authority to pre-empt the portions of laws that are hindering broadband competition.

"We do not question the public benefits that the FCC identifies in permitting municipalities to expand Gigabit Internet coverage," the ruling states. 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.

But as written, the court found that Section 706 did not give the FCC enough authority to pre-empt state law, even if, as in this case, these laws are clearly being used to protect incumbent broadband duopolies from change and competition.

"Section 706 does not contain a clear statement authorizing preemption of Tennessee and North Carolina's statutes that govern the decisions of their municipal subdivisions," the ruling said.

It's unclear what path the FCC intends to take next (they've not yet responded to a request for comment), but it's clear the agency will need to rework its strategy if it hopes to finally put an end to bad state protectionist broadband laws.

Update: FCC boss Tom Wheeler has issued this statement on the ruling:

quote:
“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 the end, I believe the Commission’s decision to champion municipal efforts highlighted the benefits of competition and the need of communities to take their broadband futures in their own hands.

"In the past 18 months, over 50 communities have taken steps to build their own bridges across the digital divide. The efforts of communities wanting better broadband 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. The FCC’s mandate is to make sure that Americans have access to the best possible broadband. We will consider all our legal and policy options to remove barriers to broadband deployment wherever they exist so that all Americans can have access to 21st Century communications.

"Should states seek to repeal their anti-competitive broadband statutes, I will be happy to testify on behalf of better broadband and consumer choice. Should states seek to limit the right of people to act for better broadband, I will be happy to testify on behalf of consumer choice."

Most recommended from 60 comments


Papageno
join:2011-01-26
Portland, OR

33 recommendations

Papageno

Member

Good luck getting the law changed...

...with this crowd in control of the House of Representatives. They never met a broadband monopoly they didn't like.

Anon0ed7d
@2601:200.x

9 recommendations

Anon0ed7d

Anon

So...

The FEDERAL communications Commision has no power over a STATE LAW?
..ok I guess..
shmerl
join:2013-10-21

6 recommendations

shmerl

Member

So, what's left now?

People should put more pressure on local lawmakers, to repeal those crooked laws. Unless people don't care, enough protest can repeal that garbage.

KrK
Heavy Artillery For The Little Guy
Premium Member
join:2000-01-17
Tulsa, OK

4 recommendations

KrK

Premium Member

Oklahoma is doomed, then....

... Years ago at&t bought out the legislature and removed themselves from OCC oversight. Yes, that's how bad our politicians are. Now they'll just buy a law that blocks all competition and thumb their noses at the FCC.