A more serious – and serious-minded – challenge has emerged to FCC chairman Tom Wheeler’s supposed plan to pre-empt state laws restricting municipal broadband projects. The National Conference of State Legislatures sent Wheeler a letter threatening to take the FCC to court if he moves ahead…
As you consider your course of action on this matter, we encourage you to heed the principles of federalism and caution you of the numerous decisions by the United States Supreme Court with regard to the relationship between the state and its political subdivisions. This is a fundamental tenet of state government…
Aside from the Constitutional challenges, such an attempt disregards the countless hours of deliberation and votes cast by locally elected lawmakers across the country and supplants it with the impulses of a five- member appointed body in Washington, D.C.
The two big questions are 1. how far can congress go in telling states how to manage subordinate local agencies, and 2. has it already given sufficient authority to the FCC, in regards to municipal broadband? The answer to question 1 is likely to be pretty darn far when it comes to telecoms policy, but the supreme court’s answer to question 2 has, up to this point, been no.
NCSL is a bi-partisan organisation that, among other things, functions as a lobbying platform for state legislators, who make up its membership. One of its core principles is opposition to federal legislation or regulatory action that diminishes state authority or puts burdens upon it.
There’s a foundation attached to NCSL that includes corporate lobbyists – from AT&T and Comcast, among others – but the organisation itself is run by serving legislators and legislative staff alone. It would be easy to dismiss the letter as a favor to corporate campaign contributors, except it also reflects the widely – universally? – held opinion in state capitols that decision-making authority should rest there, and not in Washington.
The limits on the FCC’s power to tell states how to divvy up authority and responsibilities amongst subordinate agencies will be the question that muni broadband pre-emption lives and dies on, if Wheeler stops talking and starts acting.