Legality of FCC’s muni broadband preemption will be decided in Cincinnati

by Steve Blum • , , ,

The local team.

It’s no great surprise, but the two challenges to the Federal Communications Commission’s decision to preempt state bans on municipal broadband have been consolidated into one proceeding. The nod goes to the first case to be submitted, by the State of Tennessee, in the federal appeals court district that’s headquartered in Cincinnati and includes Tennessee. The appeal from the state of North Carolina was filed nearly two months later in the federal court district that’s based in Richmond, Virginia.

Federal court rules say that when more than challenge is mounted to a particular decision, all the cases get combined in the court where the first one was filed (if there’s a tie, and anything filed in the first ten days following the decision is deemed a tie, the court of choice is determined by lottery). The FCC pointed that out to the court and North Carolina said well, okay

The FCC respectfully requests that the Court transfer this case to the Sixth Circuit. After consultation, the State of North Carolina and the United States have both authorized the Commission to represent that they do not oppose this motion.

The Richmond-based court said fine, and sent everyone and all the documents over to Cincinnati.

And that’s where it stands. The FCC’s decision is officially in effect and no one has asked the court to put anything on hold while the appeal proceeds. Technically, the decision only affects existing muni broadband systems in Chattanooga, Tennessee and Wilson, North Carolina that want to expand into adjacent communities, so waiting for the court to rule poses little risk to either side.