Federal justice department won't defend muni broadband preemption

10 November 2015 by Steve Blum
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Out on a limb.

Municipal broadband advocates aren’t getting any help from the federal justice department. In a one line letter filed with a federal appeals court last week, the justice department wrote “respondent United States of America takes no position” in the dispute between the Federal Communications Commission and the states of Tennessee and North Carolina over whether state restrictions on muni broadband can be preempted by the FCC.

According to a Washington Post story (h/t to the Baller Herbst list for the pointer), the likeliest explanation is that the FCC is fighting a losing battle

The Justice Department said Friday that it won’t be helping the Federal Communications Commission fight a couple of key lawsuits on municipal broadband, in a possible indication of trouble ahead for the FCC…

It’s not unheard of for the Justice Department to bow out of a case involving a federal agency. But its decision this time is unusual, many policy analysts say. The Obama administration has vocally supported city-run Internet initiatives, and urged the FCC to take action on the matter. And the Justice Department is already supporting the FCC in another high-profile lawsuit on Internet policy involving net neutrality.

A former FCC lawyer now working for a conservative think tank guessed it’s because the justice department is “concerned about the lawfulness of the FCC’s preemption action”. Others told the Post that maybe it’s because the issue is outside of its “traditional area of expertise”, which sounds like a weak excuse: defending federal authority to preempt states is a core competency of the justice department.