A closer look at FCC’s boundaries for state broadband regulators

by Steve Blum • , , ,

Out of bounds.

The FCC’s decision to bring broadband infrastructure and service under common carrier rules sets limits on both the ability of states to impose regulations under those rules, and on federal preemption of existing state authority.

As far as the latter is concerned, in paragraph 531 the decision specifically references the ability of states to choose to regulate pole attachment rules (section 224 of the common carrier law), manage universal service requirements and eligibility (section 214) – although not impose taxes (see paragraph 432 of the decision), manage the public right of way (section 253) and grandfather in rules (section 261). In other words, states can keep doing the things they’re already doing, presuming, of course, that they’re not off on a wild hare.

But the decision confers relatively little additional authority, with the arguable exceptions of universal service powers. It goes to great lengths in paragraphs 431 through 433 to stake a federal claim on broadband regulation…

We reaffirm the Commission’s longstanding conclusion that broadband Internet access service is jurisdictionally interstate for regulatory purposes…We also make clear that the states are bound by our forbearance decisions today. Under [federal telecoms law], “[a] State commission may not continue to apply or enforce any provision” from which the Commission has granted forbearance…Finally, we announce our firm intention to exercise our preemption authority to preclude states from imposing obligations on broadband service that are inconsistent with the carefully tailored regulatory scheme we adopt in this Order.

However, those restrictions only apply to things state commissions might do under common carrier rules. As footnote 708 of the decision explains, states still have authority under another section of federal telecoms law – section 706 – that grants what seems to be wide authority to take non-common carrier-type actions…

The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.

The balancing act between common carrier rules – which are largely off limits to state commissions – and section 706 is playing out in California right now, as the California Public Utilities Commission considers formally claiming authority to factor broadband considerations into decisions involving telephone service and other matters clearly within its jurisdiction.

Note: the section numbers above reference the version of the decision released by the FCC on 12 March 2015. The section numbers in the version published in the federal register on 13 April 2015 are a little different in some cases, but not by much. The footnotes referenced are only in the 12 March version.