Eight Republican senators have written FCC Chairman Tom Wheeler to say they are not happy with FCC efforts to encourage municipal broadband, saying that the FCC "should not be in the business of choosing winners and losers in the competitive broadband marketplace."

The pointed specifically to the FCC's decision (3-2 along party lines) to preempt state laws limiting municipal broadband, as well as funding government-owned networks through the FCC's Universal Service Fund's rural broadband experiments, and at least one FCC officials' outreach on the issue.

ISPs have long expressed concerns about preemption, including regarding government overbuilding and subsidizing networks that could fail and leave taxpayers holding the bag.

But they also talked more generally about their concern with an FCC promoting municipal overbuilds of privately owned networks. The outreach concern was apparently a reference to a YouTube video that has been circulated by critics of the FCC showing an FCC official at a conference saying states should not tell local communities what to do," although that is the gist of what Wheeler has been saying if what the states are telling them is limiting broadband buildouts and competition. The caveat is that the FCC preemption only applies to states who try to limit the expansion of already-allowed municipal networks, not state laws preventing such nets.

Wheeler has said such state laws limiting municipal broadband were backed by those private networks in an effort to discourage competition.

While they agreed that insuring broadband service to all Americans, particularly in rural areas, is vitally important, they take issue with promoting government-owned nets at the expense of private sector broadband providers who have are striving to deploy service nationwide.

They also have a states' rights issue. "We urge the FCC to proceed cautiously where its actions would impinge on the sovereignty of fundamental state decisions about economic and fiscal policy," they cautioned," branding it "callous disregard" for state sovereignty that is both inappropriate and legally suspect.

Setting a Jan. 4 deadline for the responses, the Senators want Wheeler to: put a figure on how much the FCC has committed to municipal broadband through its USF rural broadband experiments; tell them whether there are any limits on using those funds to overbuild private nets and whether the emergence of new government nets could threaten USF funding to existing private network providers; detail any plans to preempt any more state laws or adopt additional municipal broadband policies, and provide outreach plans to state or local officials.

Signing on to the letters were Sens. Deb Fischer, Ron Johnson, Marco Rubio, John Cornyn, Pat Roberts, John Barrasso, Michael Enzi and Tim Scott.

Add the governors of Tennessee and South Carolina and attorneys general from Alabama and Tennessee to the list of those siding with state legislators (and cable operators) in opposing the FCC's preemption of laws limiting municipal broadband buildouts, which has become a battle over states’ rights.

That came in letters to the House Communications Subcommittee Republican and Democratic leadership in advance of an FCC oversight hearing scheduled for Dec. 17.

The FCC earlier this year (http://www.multichannel.com/news/technology/fcc-releases-muni-pre-emptio...) preempted state laws in Tennessee and North Carolina, prompting lawsuits from those states in the Sixth Circuit court of Appeals. A majority of attorneys general had asked the FCC not to preempt. (http://www.multichannel.com/news/national-regulation/state-ags-fight-pre...).

South Carolina Governor Nikki Haley told the legislators she strongly opposed the FCC's "federal overreach" into her state's business; ditto Tennessee governor Bill Haslam, who asked the Congress to step in to Protect states rights; Tennessee AG Herbert Slattery added that the FCC did not have the authority to "circumvent" stat law; and Alabama AG Luther Strange, whose office joined a brief to the Sixth Circuit opposing preemption, sent a copy of the brief in his letter to committee leaders.

The FCC majority said in preempting the state laws that the agency had the power and the duty to step in when states were limiting broadband buildouts. The commission confirmed it did not have the power to overturn state laws preventing municipal broadband buildouts, but if those states allows such networks, the FCC can pre-empt laws that would limit them.

FCC chairman Tom Wheeler has tabbed those laws as the handiwork of incumbent Internet service providers trying to prevent competition.

The FCC is justifying the move under its Sec. 706 authority to regulate if it concludes that advanced telecommunications is not being deployed in a reasonable and timely manner, which it has concluded in its recent reports to Congress on the state of high-speed broadband. "We read section 706 to permit the commission to preempt state laws that primarily serve to regulate competition in the broadband market," the order states.

The order points out that the FCC has taken other pre-emption actions to further competition, including state laws on deployment of wireless facilities or restrictions on competitive cable franchises.