Muni Broadband Pre-emption Opponents Haven’t ‘Successfully Rebutted’ FCC Section 706 Authority, Petitioners Say
The Electric Power Board (EPB) of Chattanooga, Tennessee (docket 14-116), and Wilson, North Carolina (docket 14-115), struck back against opponents of their petitions to the FCC to pre-empt their states’ municipal broadband laws. Pre-emption opponents “have not successfully rebutted” the municipalities’ argument that the FCC has authority under Communications Act Section 706 “to remove State barriers to community broadband initiatives,” Chattanooga and Wilson said in separate but similar reply comments. The positions of pre-emption supporters and opponents didn’t appear to shift much based on filings available Tuesday, with state governments and multiple industry groups continuing to oppose the petitions on states’ rights grounds.
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Arguments by pre-emption opponents that Section 706 didn’t show congressional intent to authorize pre-emption (CD Sept 2 p2) contradict “the language, purposes, structure, and legislative history” of the section, said Chattanooga and Wilson. Congress displayed “clear and specific intent” in Section 706’s language allowing pre-emption, the municipalities said. The U.S. Courts of Appeals for the D.C. Circuit and 10th Circuit have separately ruled that the FCC can draw authority from the section, Chattanooga and Wilson said. The municipalities continued to reject opponents’ arguments that the Supreme Court’s 2004 ruling in Nixon v. Missouri Municipal League would prohibit FCC pre-emption.
Chattanooga and Wilson rejected opponents’ arguments that the FCC could better achieve Section 706’s goals through methods other than pre-emption and that states are justified in restricting municipal broadband. While opponents can claim that some municipal broadband networks have been “supposed failures,” the Chattanooga and Wilson networks have been “highly successful,” the municipalities said. Even if other networks haven’t been successful, “that does not justify State legislation that expressly or effectively bans communities from deploying such networks,” the municipalities said. The Taxpayers Protection Alliance disputed the success of EPB’s network, contending that its services are “just barely profitable” and that it has proven costly for area taxpayers (http://bit.ly/10l0Cou).
Chattanooga and Wilson said their petitions differ in some aspects related to legal justification. Opponents’ arguments that municipal broadband laws only create a level playing field rather than outright restricting municipal services applies only to North Carolina’s law, Chattanooga said. Tennessee’s law “had nothing to do with creating a level playing field or promoting fair competition outside of EPB’s or any other Tennessee municipal electric utility’s home territory,” Chattanooga said. “It just flatly prohibited any such broadband investment and competition.” North Carolina’s law “is unquestionably a barrier to broadband investment,” Wilson said.
Tennessee Lt. Gov. Ron Ramsey and state House Republican Caucus Chairman Glen Casada, both Republicans, strongly opposed “inserting the FCC into Tennessee’s economic and fiscal affairs” because it would create “a dangerous precedent and violate state sovereignty” (http://bit.ly/1wUSXrs). Republican Wisconsin legislators state Senate Telecom Committee Chairman Paul Farrow and state Assembly Utilities Committee Chairman Mike Kuglitsch opposed the Chattanooga and Wilson petitions, they said: If the FCC granted those petitions, “it is clear that laws in other states could be subject to similar preemption petitions” (http://bit.ly/10kNyiR).
NARUC said it agreed with pre-emption opponents that neither Congress nor the FCC “has the power under the U.S. Constitution to effectively grant power to a Municipality denied by the State,” noting Nixon. “It is hornbook law that a city or municipality is a subsidiary or ‘creature’ of the State” and therefore they “have no authority to engage in activities unauthorized in their charter,” NARUC said (http://bit.ly/1nGaZhe).
Palo Alto, California (http://bit.ly/10l0MvY), said it supports the Chattanooga and Wilson petitions, aligning itself with earlier supportive comments from the National Association of Counties, the National Association of Telecommunications Officers and Advisors and the U.S. Conference of Mayors (http://bit.ly/1qnOviT). Palo Alto said local control was crucial to its ability to operate its own 41-mile dark fiber network, which it is evaluating for use for broadband service.