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.
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.