Tennessee says muni broadband law limits cities not service

by Steve Blum • , , ,

The Federal Communications Commission went beyond the bounds of regulating interstate telecommunications when it issued an order that preempted state restrictions on municipal broadband systems in Tennessee and North Carolina. That’s one of two core arguments that the state of Tennessee made yesterday as it rebutted the FCC’s defence of the order in a federal appeals court case

The Order contains none of the hallmarks of interstate communications policy regulation; it is neither neutral nor generally applicable. The Order does not advance a uniform regulatory scheme in furtherance of national objectives. Instead, it targets two State governments and their relationship with their subordinate units as the objects of its action. One need look no further than the title of the FCC’s underlying proceeding to see that the agency’s goal was to isolate and redefine municipal authority to provide broadband services. This case has never been about promoting a uniform, nationwide “communications competition policy.” It is about federal interference with two States’ plenary control over their political subdivisions.

Tennessee’s reply acknowledges that “a wide range of neutral telecommunications regulations apply to all service providers, whether or not those providers are arms of a State government”, but leans on the point – which is its second core argument – that it’s up to a state to decide if a city can get into the broadband business, and if so what geographic limits and financial requirements apply.

The U.S. supreme court set the bar high for federal agencies that want to preempt a state’s traditional power to decide how it, and its subordinate layers of government, will conduct business. It requires that congress give a federal agency “unmistakably clear” authority to do so. That’s why the FCC is arguing instead that the case is about regulating interstate communications, which it clearly can do.

North Carolina is also challenging the FCC’s order. Its reply brief, also filed yesterday, reiterates essentially the same points.

Tennessee reply brief
North Carolina reply brief