FCC's Pai: Commission Lacks Authority to Preempt State Broadband Laws

Wednesday may have notched a record for reactions to an event that has not happened yet.

The event is the President's speech Tuesday (Jan. 14) on the need for high-speed broadband and what he and his administration planned to do about it.

The reactions are coming because, unlike in past years where the President's State of the Union address themes only trickle out an hour or two before speech time —this year on Jan. 20— the White House decided to preview those themes and initiatives to journalists, then the public, beforehand, as it also did with cybersecurity. The President plans to outline his already outlined plan in a speech in Cedar Falls, Iowa, where the public utility has built out high-speed broadband at speeds rivaling world capitals, the White House has pointed out.

FCC Commissioner Ajit Pai was not enthused by the President's signal to FCC chairman Tom Wheeler that he supports preemption of state laws limiting municipal broadband, particularly given that he thinks the FCC lacks the authority to use it.

"As an independent agency, the FCC must make its decisions based on the law, not political convenience," said Pai in a statement. "And U.S. Supreme Court precedent makes clear that the Commission has no authority to preempt state restrictions on municipal broadband projects. The FCC instead should focus on removing regulatory barriers to broadband deployment by the private sector."

National Cable & Telecommunications Association president Michael Powell said of the President's upcoming but telegraphed speech, "America's decades-long policy of promoting private investment and exercising a light regulatory touch has yielded substantial benefits for American consumers. As evidence, cable's top broadband speeds have increased over 3200 percent in a decade, Akamai recently reported that 12 American states are among the 20 fastest regions of the world and our markets remain the envy of the world. While government run networks may be appropriate in rare cases, many such enterprises have ended up in failure, saddling taxpayers with significant long-term financial liabilities and diverting scarce resources from other pressing local needs."

Powell said broadband would clearly play a central role in the fabric of society, but, "rather than chase false solutions, government policies should be directed at overcoming barriers to adoption and extending the reach of broadband to places yet unserved. We welcome sensible government policies that will build on our successes and convince even more Americans to take advantage of the broadband opportunity."

Rep. Doris Matsui (D-Calif.), a member of the House Communications Subcommittee, was all for the President's high-speed initiative.

"I applaud the President's initiative to expand affordable, high-speed broadband to more communities across the nation," she said. "This initiative will spur competition and provide communities with more choices in the broadband economy. It is an important step toward ensuring all Americans — whether in an urban or rural community — have the opportunity to engage in the digital economy. I look forward to working with the Administration and the FCC, which has been active on this issue, in support of efforts to expand broadband access to every corner of our country."

Rep. Deb Fisher (R-Neb.) was not similarly feeling the broadband love, branding the President's support for municipal broadband as nationalizing the Internet. "Each day we see more policies coming out of this White House that attempt to wield greater power and control for the federal government," she said. "This afternoon, we will see the president parachute into Iowa and tout a new federal takeover of state laws governing broadband and the Internet."

"Ubiquitous broadband deployment empowers consumers, strengthens communities and provides economic opportunity for the innovative companies that drive our ICT sector," said the Telecommunications Industry Association. "TIA has long supported this goal, and we applaud President Obama's initiative. A critical step forward is to remove regulatory barriers that prevent or discourage private sector investment in new broadband facilities. At the same time, we encourage a collaboration with local governments, and additional public efforts can and should work to supplement private sector investments. TIA believes that state and local governments should be free to identify those broadband needs that are best met through some form of governmental action or partnership with the private sector."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.