Court Overturns FCC’s Municipal Broadband Order

Cities in Tennessee and North Carolina had sought to expand municipal broadband networks beyond current boundaries, but faced laws forbidding or placing onerous restrictions on the expansions. The decision strikes down a ban imposed on such legislation by the Federal Communications Commission previous year.

The FCC, however, remains undeterred by the ruling.

Other sources suggested that although there is no process to appeal Wednesday’s ruling by judges in the Sixth Circuit court, the Supreme Court could decide to take up the issue.

In a statement, FCC Chairman Tom Wheeler said the commission is reviewing the ruling. For example, non-profit broadband advocacy organization Next Century Cities called the decision a “setback in the fight to ensure access to next-generation broadband for more Americans”, arguing that municipalities should be able to make their own decisions about broadband access.

As of October, the Community Broadband Networks Initiative had identified 450 communities across the US with some form of municipal broadband program, including more than 50 cities in 19 states where public networks were providing at least 1 gigabit-speed access. “That dog won’t hunt”, Wheeler declared.

The focus of the ruling was high-speed fiber network run by the cities Chattanooga and Wilson in Tennessee and North Carolina, respectively.

Opponents claimed the FCC was overreaching its authority.

The FCC’s net neutrality decision was upheld by a federal appeals court, but a win on the state law preemption would have allowed Wheeler to make a bigger impact on boosting broadband competition in the United States.

The court appeared sympathetic to the goals of the FCC, if not their power to overrule state regulations.

A court has shot down the FCC’s attempt to pre-empt protectionist state broadband laws that hinder municipal broadband. In preempting the state laws, the FCC relied upon Section 706 of the Telecommunications Act of 1996, which requires the FCC to accelerate broadband deployment using “measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment”.

“The EPB’s surrounding communities allegedly constitute a “digital desert” in which the Internet services are abysmal or nonexistent”, Circuit Judge John M. Rogers observed in the opinion nonetheless reversing the agency’s preemption order.

TechFreedom, a non-partisan think tank in Washington, D.C., hailed the decision. “The Court recognized the simple fact that nothing in the Telecommunications Act provides the FCC with the power to give authority to a state entity that is not granted by that state’s constitution or legislature”, NARUC committee on telecommunications chair Chris Nelson wrote.

A federal appeals court has ruled against the Federal Communications Commission in its bid to stop states from limiting the expansion of internet service provided by cities.