Prep for Anticipated Suits Over FCC Muni Broadband Pre-emption Awaits Order's Release
Preparations for much-anticipated state challenges to the FCC’s pre-emption of municipal broadband laws in North Carolina and Tennessee appear to be largely in a holding pattern until the commission releases the text of its pre-emption order, industry lawyers said in interviews. Spokeswomen for North Carolina Attorney General Roy Cooper, a Democrat, and Tennessee Attorney General Herbert Slatery, a Republican, said separately that the AGs were considering whether to seek petitions for review and would review the order once it’s released. Baller Herbst lawyer Jim Baller, who represented the Electric Power Board of Chattanooga, Tennessee, and Wilson, North Carolina -- the two entities that petitioned the FCC for pre-emption -- said he hasn’t received any further information on when the commission might release the order.
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The FCC is reviewing the language in the order so it addresses the dissents filed by Commissioners Mike O’Rielly and Ajit Pai, Baller and other lawyers said. The FCC voted 3-2 Feb. 26 to grant the pre-emption petitions (see 1502260030). An FCC spokesman declined to comment. He directed us to a March 2 blog post by commission General Counsel Jon Sallet on the forthcoming net neutrality order in which he said that FCC staff needs time to make “final proofreading and nonsubstantive ‘clean up’ edits” to any agency order and wait for all five commissioners to sign off.
AGs Cooper and Slatery, seen to be the likeliest parties to lead a legal challenge on pre-emption, can’t file lawsuits on the FCC action until after the commission publishes the pre-emption order in The Federal Register, said Squire Patton communications lawyer Jack Nadler. The actual petition for review would itself be relatively short and could be filed quickly after the order’s publication, but any briefs the parties file afterward would require a more thorough reading of the order’s text, he said. “I would imagine that there are obviously things that can be done now -- you can look to Nixon v. Missouri Municipal League for precedent,” Nadler said. “Until you see the logic that the FCC uses in greater detail, it’s very hard to really sit down and write the brief. It just wouldn’t be an efficient way of proceeding.”
Possible interveners in a legal challenge to FCC pre-emption likewise would be dependent on the language in the commission’s order because interveners’ briefs “are bound by the issue statements of the petitioners,” said NARUC General Counsel Brad Ramsay. NARUC members would need to indicate interest in the group filing as an intervenor but they have previously backed NARUC filing comments in opposition to the Chattanooga and Wilson petitions, Ramsay said. NARUC has only opposed FCC pre-emption of state laws and hasn’t taken a position on the merits of municipal broadband, he said. Any intervener filing in opposition to the FCC would likely need to go beyond an argument that the commission’s actions are unconstitutional because they impinge on the 10th Amendment, since “lawyers know that courts try to avoid relying on the Constitution to decide anything because once you decide something as a constitutional issue, you’re stuck with it,” Ramsay said. “So they typically prefer to go by a text-based approach, which in this case would be based primarily on the FCC’s reading of [Telecom Act] Section 706.”
FCC use of Section 706 as its primary legal justification for granting the pre-emption petitions is likely to make the regional circuit courts -- the 4th U.S. Circuit Court of Appeals in the case of North Carolina and the 6th U.S. Circuit Court of Appeals in the case of Tennessee -- a more attractive venue for legal challenges than the D.C. Circuit, Nadler said. “I think the states would be much better off if their case ended up in a circuit court that’s not the D.C. Circuit,” given that the FCC’s current reading of Section 706 stems from the D.C. Circuit’s ruling in Verizon v. FCC, Nadler said. “The D.C. Circuit has obviously read Section 706 very expansively, but the other circuit courts aren’t bound by that interpretation. If you take this to another circuit, the first argument can be that Section 706 isn’t an independent grant of authority. If the case is in the D.C. Circuit, that argument is pretty much foreclosed.”