Cities side with FCC against state regulators in federal court

by Steve Blum • , , ,

The battle lines are forming over the Federal Communications Commission’s decision to tell states that they can’t particularly restrict municipal broadband systems. They could ban them altogether, but once allowed, the FCC says that munis can’t be required to play by significantly different rules than private Internet service providers.

The State of Tennessee was the first to file an appeal, in the federal appellate court in Cincinnati, aka the Sixth Circuit. No one else filed elsewhere, and in fact the other primary party in the matter, the State of North Carolina, still seems to be weighing its options. According to a post in the John Locke Foundation’s blog – The LockerRoomattorney general Roy Cooper was still mulling it over at last report

“We have not made any filing to date, though we are evaluating whether to partner with Tennessee in appealing the decision in the Sixth Circuit,” said Noelle Talley, Cooper’s spokeswoman.

The National Association of Regulatory Utility Commissioners – a lobbying group for state regulators such as the California Public Utilities Commission – is asking the court to join the case on Tennessee’s side.

Similarly, the two cities at the heart of the case – Chattanooga, Tennesse and Wilson, North Carolina – want to help the FCC and the federal justice department defend the case, which looks to be an uphill battle. Representing the City of Wilson, muni broadband attorney Jim Baller told the court there’s more to the case than one particular state’s law

The Petition for Review not only addresses the portions of the Commission’s decision relating to Tennessee law, but it also challenges the Commission’s underlying authority under federal law to grant the petitions.

The City participated actively in this matter before the Commission, and it will clearly be affected by the Court’s decision in this appeal. The City is thus “a party in interest” entitled to intervene “as of right” under [federal law].

The FCC’s decision was narrowly aimed at the two cities’ specific circumstances, but it also set a precedent that FCC chair Tom Wheeler expects to follow. There’s still time for others, including North Carolina, to jump in. One early question will be whether the appeals court puts the FCC’s decision on hold pending review. That’s important because the case is likely to take several years to play out, particularly if it eventually ends up at the U.S. supreme court.