States’ Rights Battle Builds Over FCC Preemption

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 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.

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 Congress to step in to protect states rights; Tennessee AG Herbert Slattery added that the FCC did not have the authority to "circumvent" state 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.

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.