Sen. Deb Fischer (R-Neb.) took aim this week at the FCC's preemption last year of state laws in North Carolina and Tennessee limiting municipal broadband buildouts and urged Congress to "help" the FCC recognize state laws.
Cable operators are no fans of the FCC preemption actions either, arguing they prevent states from limiting government-funded overbuilds of existing service or potential waste of taxpayer dollars.
FCC chairman Tom Wheeler signaled early on he thought the state laws were simply vehicles for powerful incumbents to block broadband competition. The FCC did not assert an ability to preempt laws preventing municipal broadband buildouts, only those trying to limit expansion of buildouts that were already approved.
In an FCC oversight hearing March 2, Fischer pointed out that the Justice Department had declined to defend the FCC's preemption of state laws, saying that suggested the FCC was on shaky ground. FCC commissioner Ajit Pai agreed. "It is pretty clear that the agency could not find the requisite clear statement from Congress to support preemption of state laws."
Fischer agreed and said she hoped the committee "would take note of that and possibly look at legislation that would help the FCC in recognizing state laws in the future..."
The senator has been a leading critic of FCC preemption, heading up a letter from eight senators last fall saying the FCC was showing "callous disregard" for states’ rights, an assessment some attorneys general agree with.
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