Muni broadband preemption lands in federal court

31 March 2015 by Steve Blum
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Don’t be abusing your discretion in Tennessee.

Tennessee is taking the FCC to court over its ruling that preempted state-imposed restrictions on municipal broadband systems. It filed a petition asking the federal sixth circuit court of appeals to “hold unlawful, vacate, enjoin, and set aside the Order, and provide such additional relief as may be appropriate” because…

In the Order, the FCC preempts Tennessee law pertaining to the operation of municipal electric plants, including the Electric Power Board of Chattanooga, an instrumentality of the City of Chattanooga, created and controlled by the State of Tennessee. In so doing, the FCC has unlawfully inserted itself between the State of Tennessee and the State’s own political subdivisions. The State of Tennessee, as a sovereign and a party to the proceeding below, is aggrieved and seeks relief on the grounds that the Order: (1) is contrary to the United States Constitution; (2) is in excess of the Commission’s authority; (3) is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act; and (4) is otherwise contrary to law.

The FCC’s ruling specifically overturned muni broadband restrictions that applied to systems in Chattanooga, Tennessee and Wilson, North Carolina. No word yet on whether or not North Carolina’s attorney general is going to file his own appeal. If I’m understanding federal court rules correctly, it’ll be the Cincinnati-based sixth circuit court that hears it, rather than the Virginia-based fourth circuit that covers North Carolina. Don’t bet the ranch on that, though, I’m cribbing from Harold Feld’s excellent explanation of how court challenges of FCC decisions work and it’s more than possible I’m missing some of the fine points.