FCC’s Clyburn Wary of State-Law Preemption on Broadband

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By Ayanna Alexander

Democratic FCC Commissioner Mignon Clyburn is skeptical of any agency move that would preempt state law to encourage broadband deployment, she said June 8.

During a question-and-answer session hosted by the Information Technology and Innovation Foundation, Clyburn criticized the prospect of the FCC relying first on preempting state laws to speed broadband deployment. The FCC has statutory authority to preempt state laws if the agency believes they’re prohibiting or interrupting broadband development.

Republican FCC chairman Ajit Pai has called expanding broadband to underserved areas a top priority. The FCC is mulling two proposals that would ease the processes for wireless and wireline broadband companies to get state and local approval to build network facilities. Both proposals ask for public comment on whether the FCC should use its preemption powers to speed deployment.

Clyburn has backed the plans in principle but voiced concern they could prioritize broadband industry profits and leave vulnerable and low-income consumers behind. Clyburn said at the June 8 session she believes the FCC instead should use a consortium model that would bring together academic leaders, scientists, city and council officials, and industry leaders to discuss broadband issues in low-income areas.

“Going straight and using the word ‘preemption’ first, is not going to win you a lot of friends in local communities,” she said. “We really need to get more voices in the room. I think the solution is to have a clearing household way to have conversations about the concerns that exist.”

Any FCC move to preempt state law would also likely get snarled in a legal challenge “for a long time,” she said. The agency’s most high-profile recent invocation of its preemption authority failed last year after an appeals court overturned an FCC order preempting North Carolina and Tennessee laws on municipal broadband networks. The then-Democratic majority said the laws limited the growth of city-built networks.

A number of policy makers and broadband industry stakeholders took part in a panel following Clyburn’s remarks. Clyburn and the panelists all said the FCC, broadband companies, and local governments must figure out a better way to serve all Americans. Unless localities are involved, broadband deployment will continue to be stunted, they said.

To contact the reporter on this story: Ayanna Alexander in Washington at aalexander@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

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