Tennessee says FCC can’t step on states’ authority over cities

by Steve Blum • , , ,

Rock solid sovereignty.

The State of Tennessee has offered its basis for challenging the Federal Communications Commission’s decision to preempt state restrictions on local broadband initiatives, making its case in a brief filed with a federal appeals court in Cincinnati.

Tennessee’s top line argument is that congress has no authority under the U.S. constitution to tell states how to manage or delegate authority to subordinate units such as cities and counties. On its own, that probably won’t fly – states have broad but not unlimited discretion. The U.S. supreme court has allowed congress to muck about in areas that states consider sovereign territory, but only when it makes a “plain statement” that it intends to do so.

The FCC’s decision to preempt state restrictions on municipal broadband systems is based on a section of telecommunications law that is nothing like a “plain statement”. Section 706 of the telecommunications act of 1996 gives general direction to the FCC (and state public utilities commissions), but doesn’t specifically say that overriding otherwise allowable state limits on local government authority is a permissible way to go about it. That’s the core of Tennessee’s argument, with a 2004 decision – Nixon vs. Missouri Municipal League – regarding restrictions on municipal broadband front and center.

The third leg of Tennessee’s case is that section 706 doesn’t actually grant any authority to the FCC or state commissions, but merely gives guidance on how powers that are specifically delegated elsewhere should be exercised. One federal appeals court decision – Verizon v. FCC – said that it does grant actual authority but offers no specifics. It’s vague enough, though, that there’s ample room for the appeals court in this case to either rule otherwise or significantly circumscribe it.

The arguments Tennessee made are strictly conventional, framing the case as a traditional dispute over states rights. The weight of legal precedent and opinion is on its side. The FCC will have to do better than the we ought to be able to do it so we did argument it’s made so far. The deadline for doing so is 5 November 2015.