FCC’s muni preemption attempt looks gone for good

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Wednesday’s appeals court decision that tossed out the Federal Communications Commission’s preemption of state limits on municipal broadband is looking more and more like the final word.

The reaction of those on the losing side of the judge’s decision – the FCC and the cities of Chattanooga, Tennessee and Wilson, North Carolina – can be summed up as disappointed resignation. Lots of sorrow but no fighting words, as in they got it wrong and we’re gonna take it all the way to the supreme court. FCC chairman Tom Wheeler’s press release was typical…

In the end, I believe the Commission’s decision to champion municipal efforts highlighted the benefits of competition and the need of communities to take their broadband futures in their own hands…

Should states seek to repeal their anti-competitive broadband statutes, I will be happy to testify on behalf of better broadband and consumer choice. Should states seek to limit the right of people to act for better broadband, I will be happy to testify on behalf of consumer choice.

Translation: we were out to make a point and we made it, and I’ll be happy to go on TV and make the point again.

I think the FCC will walk away from this one, for two reasons. First, the legal rationale for its attempt at preemption was far fetched – even the federal attorney general wasn’t interested in defending it.

Second, the preemption relied on an expansive interpretation of a particular clause in federal telecoms law – section 706 – that the FCC is also relying on to support its marquee decision to regulate broadband as a common carrier service. The FCC won the first round of appeals against that decision, because it’s standing on much firmer legal ground. Throwing the muni preemption case into the mix – which otherwise isn’t on any legal ground at all – would only weaken its position in the main event.