Commentary
States' Rights Advocates, Broadband Providers Prepare For Battle On Muni-Broadband
- by Wendy Davis , Staff Writer @wendyndavis, February 5, 2015
On Monday, the Federal Communications Commission signaled that it will vacate muni-broadband restrictions in around 20 states.
“Many communities have found that existing private-sector broadband deployment or investment fails to meet their needs,” Chairman Tom Wheeler said in a statement issued on Monday. “They should be able to make their own decisions about building the networks they need to thrive.”
Wheeler specifically proposed that the FCC grant requests made by two cities -- Wilson, N.C. and Chattanooga, Tenn. -- that want to see state laws vacated. Years ago, Wilson and Chattanooga built their own fiber-optic networks, which offered better service than anything available through the commercial providers. But state laws in North Carolina and Tennessee are now preventing other cities from creating their own networks.
While Wheeler didn't officially say until this week that he will propose nixing state laws, his earlier comments on the subject left no doubt about his position: He has spent months criticizing state curbs on broadband -- often the result of lobbying by telecoms and cable companies -- and vowing to do everything in his power to lift those laws.
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News of the FCC's expected move isn't sitting well with everyone. South Carolina Attorney General Alan Wilson, for one, says that an attempt by the FCC to nix state laws is “most likely unconstitutional.”
“The proposal's lack of respect for state's rights is especially disturbing,” South Carolina's top law enforcement official writes in a letter dated Feb. 4. “The intrusion of the FCC into state economic affairs and into its legal structure governing political subdivisions, without any authorization by Congress, intrudes upon our system of federalism.”
The industry groups US Telecom and NTCA-The Rural Broadband Association also appear to be prepping a challenge to the FCC's anticipated move.
Those organizations argue in a filing submitted today that even though the FCC is authorized to promote broadband, it doesn't have the right to “preempt a state’s regulation of its own political subdivisions.”
Of course, at this point, threats of a legal challenge probably won't stop the FCC from moving forward. Whether the move will survive a lawsuit remains to be seen.
The FCC will vote on the matter on Feb. 26.
Wendy Davis is a Senior Writer at MediaPost. You can reach Wendy at wdavis@mediapost.com
>>Those organizations argue in a filing submitted today that even though the FCC is authorized to promote broadband, it doesn't have the right to “preempt a state’s regulation of its own political subdivisions.”
Like fun it doesn't. If a state passes a law to restrict unlicensed frequencies (like WIFI) can the FCC override it? They can and they have. If a state allows localities to issue exclusive contracts for cable TV service, can the FCC override it? They can and they have. The Communications Act of 1934 gives the FCC the authority to regulate all communications by wire or radio. A state can regulate intrastate communications but chances are a communication over the Internet is in practically every case of a nature of Interstate or foreign connections as to give the FCC jurisdiction too refulat against restrictions against municipal broadband if it chooses to do so. Further, the FCC would be doing this to increase the availability of communications; for a state to argue the FCC does not have jurisdiction they would have to argue how restricting providing of additional broadband providers improves the general public interest, convenience and necessity and how the FCC allowing more providers goes against the public interest, convenience and necessity.