'Story Is Not Done' on FCC Pre-emption of State Municipal Broadband Laws, Wireline Bureau Official Says
The FCC is aware “our story is not done” on its municipal broadband pre-emption order, given Tennessee Attorney General Herbert Slatery’s legal challenge to the order, said Daniel Kahn, Wireline Bureau Deputy Competition Policy Division Chief, during a commission webinar Monday. Slatery, a Republican, sued the FCC March 20 in the 6th U.S. Court of Appeals over the order, which pre-empted municipal broadband restrictions in North Carolina and Tennessee at the respective requests of Wilson, North Carolina, and the Electric Power Board (EPB) of Chattanooga (see 1503240059). North Carolina Attorney General Roy Cooper, a Democrat, is considering whether to join Slatery’s lawsuit, a spokeswoman said. The FCC webinar also addressed the commission’s new NPRM on implementation of Section 111 of the Satellite Television Extension and Localism Act (STELA) Reauthorization and implementation of the FCC’s net neutrality order.
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Kahn emphasized that the FCC pre-empted the North Carolina and Tennessee municipal broadband laws based on its interpretation of its authority of Communications Act Section 706, which it based on the U.S. Court of Appeals for the D.C. Circuit’s interpretation of the statute in its Verizon v. FCC decision. The order “is not a sweeping order” since it specifically applies only to the EPB and Wilson pre-emption petitions, said Consumer Bureau Office of Intergovernmental Affairs Chief Gregory Vadas. The FCC will examine any future pre-emption petitions “on a case-by-case basis,” he said. Citizens who believe a municipality should deploy a government-owned broadband network should talk to local leaders “and see what they want to do” about petitioning to remove legal barriers to that deployment, Vadas said.
The FCC’s net neutrality order specifically says states are bound by FCC forbearance decisions and reaffirms earlier FCC findings that broadband service is considered an interstate service for regulatory purposes, said Wireline Bureau Competition Policy Division Deputy Chief Claude Aiken. Those forbearances include forbearing from instituting USF contributions for broadband services, he said. The Federal-State Joint Board on Universal Service is separately examining possible recommendations on USF contribution revisions, Vadas said. The FCC also will “look closely” at state regulation of broadband services and may pre-empt state regulation if it’s inconsistent with the FCC’s net neutrality order, Aiken said.
The FCC is actively seeking state and local stakeholder comment on its STELA Reauthorization Section 111 NPRM, said Diana Sokolow, Media Bureau attorney adviser-Policy Division. The NPRM seeks comment by April 9 on whether the FCC should adopt a “rebuttable presumption” that cable operators are subject to effective competition as it implements the STELA Reauthorization (see 1503200039). The NPRM has drawn opposition from NAB and Public Knowledge (see 1503270047). The FCC has reached some “tentative” conclusions about adopting a rebuttable presumption standard, but stakeholders shouldn’t view the April 9 comment deadline as an indication that the commission has made up its mind, Vadas said in response to a question from a representative of the Fairfax County, Virginia, Department of Cable and Consumer Services. The FCC is operating under a tougher timeline on the NPRM because the STELA Authorization mandated that the commission release an order by June 2, Vadas said.