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N.C. Sues FCC Over State Broadband Pre-emption

WASHINGTON — North Carolina Attorney General Roy Cooper has filed suit in U.S. court against the Federal Communications Commission's decision to pre-empt a state law limiting cities from expanding their municipal broadband networks.

According to a copy of the lawsuit, filed in the 4th U.S. District Court of Appeals, Cooper alleges that the FCC unlawfully inserted itself between the state and its cities in a manner that is unconstitutional, exceeds its authority, and is arbitrary, capricious and otherwise illegal.

In a 3-2, party-line vote (supported by its Democratic majority), the FCC on Feb. 26 pre-empted state laws in Tennessee and North Carolina that limited cities’ ability to get into the broadband business. The agency cited its authority under Section 706 of the 1996 Telecommunications Act to ensure that advanced telecom services are deployed in a reasonable and timely manner.

The order pre-empts geographic limitations on the expansion of municipal broadband systems in Chattanooga, Tenn., and Wilson, N.C., though it does not compel any action in either case. The decision does not affect laws in other states, but signals how the FCC might act on similar petitions.

The FCC said it can't pre-empt laws preventing municipalities from building broadband networks, but signaled that it can — and likely would — pre-empt laws that limit construction that has already been authorized, albeit on a case-by-case basis.