The City of Chattanooga formally asked the FCC yesterday to throw out a Tennessee state law that prevents it from extending its fiber-to-the-home network to surrounding areas. In doing so, the city is asking FCC chairman Tom Wheeler to make good on his high-sounding rhetoric about pre-empting state restrictions on municipal broadband.
The filing is a goldmine of information. The petition itself was written by muni broadband legal expert Jim Baller, and the attachments provide a wealth of case study material on the Chattanooga project specifically, and the history of muni broadband regulation and legislation in general.
Baller makes a plausible, if circuitous, case for allowing the FCC to tell states how to allocate power amongst subordinate agencies, such as cities. As Baller has previously said, regarding another muni broadband case, the U.S. supreme court has established and applies a “traditional rule of statutory construction that federal statutes cannot be read to preempt a fundamental state power unless Congress makes it its intent unmistakabl[y] clear”.
This time, Baller says, congress wanted the FCC to be able to do whatever it thinks necessary to open up broadband markets…
Congress’s grant of broad authority to define the relevant terms, standards, and remedial approaches — limited only by the constraint that the Commission act “in a manner consistent with the public interest, convenience, and necessity” – reaffirms that Congress did not intend to tie the Commission’s hands in removing barriers to broadband investment and competition like the territorial restriction in [the Tennesse law].
There’s a difference, though, between telling a state what to do and micromanaging the way it does it. If Wheeler cowboys up (and I’m not betting on it) and the FCC grants Chattanooga its wish, it’ll be up to federal courts to sort it out.