FCC won't bulldoze state bans on muni broadband, yet

17 February 2015 by Steve Blum
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Hopes and fears that the FCC will sweep away state restrictions on municipal broadband at its upcoming meeting this month appear overblown. That’s not to say it won’t be an important decision – assuming, as is all but certain, at least three commissioners vote yes – but it will involve particular issues in two cities in two states. That’s what FCC chair Tom Wheeler told a tech group in Colorado last week…

To be clear, my proposed ruling on these two petitions for pre-emption is an adjudicatory matter. While it provides precedent for how the Commission would view similar restrictions, its direct effect is limited to the two petitioning communities, and its direct bearing is limited to the specifics of the two cases and the two state laws. Having said that, it sends a clear message and provides precedent for how the Commission would view similar restrictions. The message is that community broadband is an important option for expanding broadband deployment, and states should not be “erecting barriers to infrastructure investment.”

The cities involved are Chattanooga, Tennessee and Wilson, North Carolina. Assuming, wisely or not, Wheeler was telling the whole truth in his speech, it’s a good opportunity to test the limits of the FCC’s control of state broadband policy. In the past, the U.S. supreme court has allowed the FCC to preempt local and state laws regarding wireless towers, for example, but has also ruled that current telecommunications law doesn’t give it authority to overturn state-imposed bans on municipal broadband.

There are different circumstances this time around. Whether that’s enough will be up to the courts, since challenges have already been promised.