Tennessee Attorney General Herbert Slatery sued the FCC over the order pre-empting portions of North Carolina and Tennessee state laws that restrict municipalities’ ability to deploy government-owned broadband networks. The FCC voted 3-2 Feb. 26 to issue the order, which specifically pre-empts the state laws for the Electric Power Board (EPB) of Chattanooga, Tennessee, and Wilson, North Carolina (see 1502260030). Slatery, a Republican, had been expected to sue the FCC over the order. North Carolina Attorney General Roy Cooper, a Democrat, is expected to sue the agency. It hadn’t received any challenge from North Carolina, said an agency spokesman Tuesday. The FCC is “confident that our decision to pre-empt laws in two states that prevented community broadband providers from meeting the needs and demands of local consumers will withstand judicial scrutiny,” he said.
Alamo Broadband appealing Monday the FCC net neutrality order in the 5th U.S. Circuit Court of Appeals and USTelecom in the Court of Appeals for the D.C. Circuit (see 1503230066) were examples of circuit shopping for a favorable court to hear the cases, said public interest lawyers in interviews. It's "about circuit shopping,” said Public Knowledge Senior Vice President Harold Feld. “The D.C. Circuit and the 5th Circuit are generally considered to be extremely conservative, anti-regulation, and generally hostile to the FCC.” Litigators won't "forgo any possible advantage, including looking for the forum they think will be most favorable to their appeal,” said Feld.
FCC Commissioner Ajit Pai intends to ask Congress to strip the agency of money to execute its net neutrality order, he said in written testimony for a House Appropriations subcommittee scheduled for Tuesday. “Congress should forbid the Commission from using any appropriated funds to implement or enforce the plan the FCC just adopted to regulate the Internet,” Pai plans to testify. “Not only is this plan bad policy; absent outside intervention, the Commission will expend substantial resources implementing and enforcing regulations that are wasteful, unnecessary, and affirmatively detrimental to the American public.” Pai, one of two GOP commissioners, is “unable to support” the FCC’s FY 2016 budget request, he will say.
Alamo Broadband, a wireless ISP in San Antonio, and USTelecom filed what appear to be the first formal appeals in federal court of the FCC Feb. 26 net neutrality order. The challenges were made Monday based on the legal theory that the declaratory ruling portion of the decision became final March 12, so appeals were due Monday. While it's not clear who will lead the industry charge against the order, other challenges are still expected to be filed within 10 days of publication of the order in the Federal Register.
Transparency within the House Commerce Committee and at the FCC emerged as the key divisive issue Thursday as FCC Chairman Tom Wheeler took on his third hearing this week. Democrats blasted Communications Subcommittee Chairman Greg Walden, R-Ore., for what they said was a partisan FCC reauthorization draft bill designed to freeze funding at the agency for four years. Republicans harangued the FCC for its process and transparency practices.
The FCC released its municipal broadband pre-emption order Thursday, quietly posting it after its earlier rollout of the high-profile but no-less-controversial new net neutrality rules (see 1503120053). The order, as anticipated, targeted the specific portions of the North Carolina and Tennessee state laws that the Electric Power Board of Chattanooga and Wilson, North Carolina, had sought pre-emption from. In the order, the FCC defended its Telecom Act Section 706 authority to pre-empt state barriers to broadband deployment and countered pre-emption opponents’ assertions that pre-emption violates the 10th Amendment and Supreme Court precedent in Nixon v. Missouri Municipal League. The FCC’s release of the pre-emption order is seen as another step toward anticipated legal challenges in federal courts, which industry lawyers have said couldn’t begin in earnest until the order’s language went public (see 1503110060).
Explaining why the net neutrality order released publicly Thursday is 400 pages, a senior FCC official told reporters that the agency wanted to deal with points raised by critics and commenters because it fully expects the order to be challenged in court.
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.
FCC commissioners are considering a proposal to consolidate some of its field offices, the FCC confirmed. Industry officials say the changes could include consolidating the Enforcement Bureau offices on the West Coast -- closing offices in Washington state, Hawaii and Alaska, in favor of offices in Los Angeles and San Francisco.
Comcast and other telcos associated with the Comcast/Time Warner Cable deal have objected jointly to many of the 25 conditions included in the California Public Utilities Commission’s proposed decision (see 1502170059) on the deal, saying the commission’s review exceeded its jurisdictional authority and relies on a “flawed” analysis of the state’s telecom market post-deal. Comcast and associated telcos said they plan to work with the CPUC through the ex parte meeting process “toward a set of conditions that address concerns identified by the Proposed Decision -- including conditions that Comcast would agree to voluntarily.” Public interest groups that have been opposed to Comcast/TWC also registered objections to the CPUC’s proposed decision, with many saying the commission should outright reject the deal in part because it will be difficult to enforce the proposed conditions. Dish Network also urged the CPUC to reject the deal. The telcos and public interest groups made similar arguments during an all-party meeting with the CPUC Feb. 25 (see 1502260060).