FCC muni broadband preemption challenged by North Carolina

by Steve Blum • , , ,

Now, go home.

North Carolina is joining Tennessee, sorta, in challenging a decision by the Federal Communications Commission to negate laws in the two states that put tight restrictions on municipal broadband enterprises. Last week, North Carolina attorney general Roy Cooper asked a federal appeals court in Richmond, Virginia to throw out the preemption, saying the FCC was butting in where it had no authority to do so

In the Order, the FCC preempts North Carolina’s statutory law…governing municipal provisioning and operation of broadband communications services. Despite recognition that the State of North Carolina creates and retains control over municipal governments, the FCC unlawfully inserted itself between the State and the State’s political subdivisions.

Cooper waited until the last minute to file his appeal. It might not – probably won’t – stay with the appeals court in Richmond, also known as the fourth circuit. Tennessee was first out of the gate with a legal challenge to the FCC’s decision, taking it to the sixth circuit federal appeals court in Cincinnati. Since both states are so far making essentially the same argument, there’s a very good chance that the two cases will be combined in Cincinnati, because that’s where the first challenge was filed.

The two cities involved – Chattanooga, Tennessee and Wilson, North Carolina – have already jumped into the case in Cincinnati, on the side of the FCC. A lobbying group for state utility commissions has lined up with the challengers. So far, neither North Carolina nor Tennessee has asked the courts to put the FCC’s decision on hold while the case is heard. That might not be necessary, though. It would only matter if a city in one of the two states had an otherwise banned project ready to go right now. There’s no indication that’s the case.