FCC tongue-tied as appeals court judge blows holes in muni preemption

by Steve Blum • , , ,

The Federal Communications Commission has serious difficulties explaining why it has the power to preempt state laws that restrict municipal broadband service. Matthew Dunne, an FCC lawyer, argued the agency’s case before three federal appeals court judges on Thursday, defending last year’s decision to remove state-imposed restrictions on municipal broadband systems in Chattanooga, Tennessee and Wilson, North Carolina.

The case hinges on whether the FCC is using authority granted (or not) by congress to remove barriers to broadband deployment, or if it’s simply interfering in a state’s traditional – and well litigated – right to manage what its cities and counties can do, and how they can do it. Under pointed questioning from two of the judges (the third didn’t say much), Dunne couldn’t explain why it would be okay for a city to decide not to offer broadband service outside its city limits, but wrong for the state to make that decision instead…

Judge John Rogers: You gotta admit, don’t you, that if Wilson or Chattanooga didn’t want to expand, you aren’t forcing them to expand are you?

Matthew Dunne: To be sure, we’re not, no…

— snip —

Rogers: You just conceded that these are things the city could decline to do, if it was so inclined…You agree that the city could decline to do all these things that you say the state must let it do?

Dunne: Yes, your honor, because the state…

Rogers (interrupting): I don’t see how that doesn’t concede your case…basically what you’re doing is deciding who makes this discretionary decision whether to expand. They don’t have to expand under FCC communications policy, you just said that…Don’t you see how that gets at the structure of government rather than FCC policy?

Lawyers for Tennessee and North Carolina were also probed by the judges, but had a much easier time answering their questions. It’s always risky business to try to predict the outcome of an appeals case based on the give and take before the bench, but unless the judges come up with better answers on their own than the ones provided by Dunne, it seems a very good bet that they will overturn the FCC’s municipal broadband preemption.

You can download the audio from the session here.
Or listen to it online here.