Sixth Circuit Should Overturn FCC Muni Broadband Order, Let States Decide, Petitioners Say
The municipal broadband pre-emption challenge by North Carolina and Tennessee against the FCC (see 1509230075) isn't about broadband deployment, competition or local autonomy, said petitioners in support of the states in docket 15-3291 in the 6th U.S. Circuit Court of Appeals. The case is about the FCC’s claim of “sweeping” power and its “unchecked discretion” to govern the Internet without congressional authorization, filers said. If the court rules in favor of the FCC, municipalities either will have to let muni broadband networks go unchecked or completely ban the networks, decreasing access to the Internet, state filers said. Petitioner’s briefs are due Oct. 5.
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Alabama, Arkansas, Arizona, Colorado, Florida, Idaho, Michigan, Ohio, South Carolina, Utah and West Virginia said they want to increase access to broadband. But they said they also have to balance that desire with the need to hold accountable those municipalities that run their own networks, the states said in an amici curiae in support of North Carolina and Tennessee filed Friday. The FCC's “broad” pre-emption of state municipal broadband regulation eliminates states’ control over their own subdivisions and “frustrates state efforts to increase access to broadband,” the brief said.
In light of the pre-emption, states are left with two options: Allow municipal broadband without checks on abuse or eliminate the option altogether. “The FCC’s order … opens the door for financial instability and corruption,” the brief said. The states said pre-emption shouldn’t stand for three reasons: It’s unlikely that Congress intended to give the FCC the authority to pre-empt sunshine laws, states must be allowed to impose limitations on municipal broadband providers to protect taxpayers, and there's no clear statement in Communications Act Section 706 that gives the FCC the right to pre-empt state actions on muni broadband.
In pre-empting North Carolina and Tennessee, the FCC is attempting to substitute its judgment about government-owned networks for that of the state legislatures, said a brief from the Competitive Enterprise Institute, International Center for Law and Economics and TechFreedom. FCC reinterpretation of Section 706 would “essentially allow it to craft a new Communications Act out of thin air -- claiming carte blanche to govern the Internet,” said the groups.
The Supreme Court has said the Constitution prohibits the federal government from “commandeering a state’s legislative or administrative apparatus for federal purposes,” said Harold Furchtgott-Roth, former FCC commissioner, in a brief for the Washington Legal Foundation. The FCC has violated that prohibition by forcing North Carolina and Tennessee to operate expanded Internet services despite their state governments’ decisions that they do not wish to do so, he said.
If the order isn't overturned, then the absolute discretion North Carolina and Tennessee have over their local governments’ functions, geographical boundaries and fiscal operations will be undermined, said an American Legislative Exchange Council (ALEC) brief. States need to be able to ensure taxpayers are protected from government indiscretion, it said. Calling FCC pre-emption a “breathtaking usurpation of power,” ALEC said the order violates the principles of state structural constitutionalism: “The sovereign powers of all states reside in the people of each state, and are mediated through their state constitutions.”
Meanwhile, a Free State Foundation blog post said use of a government-owned network should "be the exception, not the rule," when trying to get broadband out to the masses. The post, by Free State President Randolph May, focuses on the "highly questionable" nature of the pre-emption by the FCC, which he said is beyond the authority the commission was given by Congress.