FCC decision says state laws must treat muni and private ISPs the same

by Steve Blum • , , ,

Only Washington can level the playing field.

Municipal broadband initiatives either have to be banned altogether by state law or allowed the same latitude to conduct business that the FCC gives private Internet service providers. That’s the core of the FCC’s decision, released last Thursday, to preempt state-imposed restrictions on publicly-owned broadband systems in Tennessee and North Carolina…

A different question would be presented if we were asked to preempt…a law that goes to a state’s power to withhold altogether the authority to provide broadband. But where a state has authorized municipalities to provide broadband, and then chooses to impose regulations on that municipal provider in order to effectuate the state’s preferred communications policy objectives, we find that such laws fall within our authority to preempt.

Which means, the FCC argues, it has the authority to decide what, if any, special restrictions are allowable. It’s okay with administrative regulations, for example. But it doesn’t like state laws that tie the hands of muni broadband providers…

The requirements in the provisions of the [North Carolina] statute, especially when taken together and viewed in context, serve to regulate the operation and competitive offerings of municipally-owned broadband providers as a means to protect incumbent private-sector ISPs. Their effect is to impose asymmetric burdens on one category of providers—municipal providers—but not on others, and to place municipal providers at a competitive disadvantage.

The language in the muni broadband decision parallels the text of the new common carrier rules for ISPs, at least to the extent that it asserts the FCC’s authority to regulate Internet service and infrastructure nationally, and to put sharp limits on what state governments can and can’t do. Even if – as I believe likely – the federal courts throw out this particular preemption, expect muni broadband rules to, more and more, be written – and rewritten – in Washington and out of the public’s view.