Responses from the states of Tennessee and North Carolina to the Federal Communication Commission’s defence of its preemption of their restrictions on municipal broadband are due later this week. My expectation is that they’ll gloss over most of the counter arguments offered by the FCC and several other groups that support the preemption, and reiterate their core point, which is that states have the traditional right to set limits on how, what and where cities may offer service of any sort, and current telecoms law doesn’t say otherwise.
The Internet Association, which is a lobbying group that represents big companies like Google, Facebook and Amazon, weighed in on the FCC’s side. Its filing essentially says Internet service sucks because there’s no competition. Which is fine, but it misses making a convincing case that congress gave the FCC the necessary and “unmistakably clear” authority to preempt a “fundamental” state prerogative.
Municipal broadband legal expert Jim Baller, representing the City of Wilson, North Carolina – one of the cities at the heart of the case – makes a clearer argument that “states are not free to ignore federal competition law and policy when their municipalities are acting in a commercial capacity”. The problem with that line of reasoning, though, is that Tennessee and North Carolina aren’t telling cities how to provide broadband, but rather where they can do it – within their city limits – and how the decision to get into the business in the first place is made – for example, via a public vote.
Even so, Tennessee and North Carolina have to convince the federal appellate court that the only issue that really matters is whether congress specifically gave the FCC the power to do what it did. This is their chance to do it.