Democrats Urge FCC to Preempt State Anti-Municipal Broadband Laws

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By Brandon Ross

Aug. 19 - Two Democratic lawmakers called on the Federal Communications Commission Aug. 19 to preempt state laws that seek to thwart municipal broadband networks.

Their action came in response to a letter from FCC Chairman Tom Wheeler that maintained that the agency has the authority to intervene where states enact laws seen as anti-municipal broadband.

In an Aug. 19 press release, Sen. Ed Markey (D-Mass.) and Rep. Mike Doyle (D-Pa.) said the choice to build community-funded broadband networks should be left up to local communities, not barred by state laws. Broadly, they want Wheeler to lift restrictions that bar communities from addressing their own broadband needs.

"What the broadband market needs today are more options and greater local choice, not barriers that prevent cities and towns from participating fully in the global economy," Markey said.

In Wheeler's letter, made public Aug. 15, the FCC chairman said the laws made by states "place a range of restrictions on communities' ability to invest in their own future."

"There is reason to believe that these laws have the effect of limiting competition in those areas, contrary to almost two decades of bipartisan federal communications policy," Wheeler said.

The FCC is now seeking public comment on whether it should preempt anti-municipal broadband laws in Tennessee and North Carolina, following requests from local utility companies for it to do so.

Markey and Doyle supported Wheeler in using the commission's power to overstep the state rules, a move Wheeler previously said he intended to take.

Small communities without high-speed broadband have faced resistance from state officials who don't want municipalities competing with private companies.

Industry Opposes Government Competition

Internet service providers such as Comcast, AT&T and Time Warner Cable say they are upgrading infrastructure for high-speed, and that government shouldn't compete against them.

"I strongly encourage [Wheeler] and the FCC to take quick and decisive action to lift restrictions that limit or prevent communities from addressing their own broadband needs," Doyle said in the press release.

Wheeler's letter said, "Any Commission decision on community broadband issues will be made only after a full opportunity for comment by all interested parties in an open proceeding and a careful analysis of the specific factual, policy, and legal issues involved."

Republican Opposition

Congressional Republicans have been equally vocal in their opposition to an FCC preemption on municipal broadband.

Wheeler did address the notion that the FCC doesn't respect state rights and sovereignty, which Senate Republicans alluded to in a June 5 letter to Wheeler.

"I respect the important role of state governments in our federal system," Wheeler said in the letter. "I recognize that federal preemption is not a step to be taken lightly without a careful consideration of all relevant legal and policy issues."

Rep. Marsha Blackburn (R-Tenn.) offered an amendment to the Financial Services and General Government Appropriations Act (H.R. 5016) to block funding for an FCC preemption of states' anti-municipal broadband laws. It was adopted by the House 223-200 in July.

"We don't need unelected federal agency bureaucrats in Washington telling our states what they can and can't do with respect to protecting their limited taxpayer dollars in private enterprises," Blackburn said in a July 15 speech on the House floor.

The bill would prevent the FCC from using its funding from preempting state laws on municipal broadband.

Blackburn did not respond to a request for comment.

State Opposition

Currently, 20 states have laws that prevent municipal broadband from being offered.

State utility commissions have vehemently opposed FCC preemption of the states' municipal broadband laws, threatening to sue if it proceeds with such action.

"We would never hesitate to sue the federal government if there was overreach," Ryan Palmer, commissioner of the Public Service Commission of West Virginia, said previously. "If there is an issue that is ripe for a court case we wouldn't back down."

The jury is out on whether the FCC truly has the authority to preempt states' municipal broadband laws, with both sides citing the same legal clauses for jurisdiction or lack thereof.

To contact the reporter on this story: Brandon Ross in Washington at bross@bna.com

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com