FCC to Pre-empt State Broadband Laws?

The FCC is expected to vacate state laws regarding the creation and expansion of municipal broadband networks.

by / February 2, 2015
Tom Wheeler, FCC Chairman Flickr/ALA Washington Office
Tom Wheeler, FCC ChairmanFlickr/ALA Washington Office

The FCC will support petitions from Wilson, N.C., and the Electric Power Board of Chattanooga, Tenn., to extinguish state laws that prevent the creation and/or expansion of municipal broadband networks.

According to The Washington Post, a “senior FCC official” revealed that Chairman Tom Wheeler would circulate a draft decision to his fellow commissioners this week. The FCC is expected to vote on the issue at a public meeting on Thursday, Feb. 26.

Wheeler confirmed his intentions in a press release issued earlier today. Citing access to broadband as a key economic driver, Wheeler believes communities should make their own decisions regarding whether to build a municipal network.

"After looking carefully at petitions by two community broadband providers asking the FCC to pre-empt provisions of state laws preventing expansion of their very successful networks, I recommend approval by the commission so that these two forward-thinking cities can serve the many citizens clamoring for a better broadband future,” Wheeler said in a statement.

Municipal broadband advocates and large incumbent Internet service providers have been at odds about local governments’ rights to build their own networks for years. Supporters of local control believe Section 706 of the Telecommunications Act of 1996 gives the commission broad authority to regulate in the public interest – in this case, overturning state laws that run counter to Internet expansion.

The United States Telecom Association (USTelecom), however, has expressed that the FCC has no authority under the Telecommunications Act of 1996 and shouldn’t be interfering with state broadband laws. The National Conference of State Legislatures (NCSL), National Governors Association (NGA) and the Council of State Governments (CSG), agree with industry. In a letter to the FCC last summer, the organizations indicated that while they support ubiquitous broadband, state decisions should be respected.

Experts believe that if the FCC moves forward in support of the petitions from Wilson, N.C., and the Electric Power Board of Chattanooga, Tenn., the commission will be slapped with a lawsuit that could drag on for years, likely ending up before the U.S. Supreme Court.