Judges put FCC back in its box: No, you can't override state laws, not even for city broadband

Funnily enough, US regulator can't just do whatever it wants

A US circuit court has torpedoed the FCC and its efforts to champion city-owned broadband networks.

The Sixth Circuit Court of Appeals said on Wednesday [PDF] that the American regulator lacks the authority to overrule state laws that prevent cities from operating their own ISPs.

Last year, the watchdog declared it was unfair of North Carolina and Tennessee to block community-run broadband. Now an appeals court has said the FCC overstepped the mark by trying to undo that block with a preemptive order. In other words, in this case, the US states can't be pushed around and overruled by the communications regulator as it lacks the clear authority to do so.

"This preemption by the FCC of the allocation of power between a state and its subdivisions requires at least a clear statement in the authorizing federal legislation," the judges noted.

"The FCC relies upon S706 of the Telecommunications Act of 1996 for the authority to preempt in this case, but that statute falls far short of such a clear statement. The preemption order must accordingly be reversed."

The case was brought before the appeal benches by the states of North Carolina and Tennessee after the FCC tried to push municipal broadband projects in areas where commercial cable and phone companies haven't offered quality services. In various states, these projects run up against state laws that prohibit governments from competing with private businesses.

With this week's ruling, the court says that the FCC in its capacity as communications watchdog does not have the power to overrule the state laws on competition, and as such cannot override the laws forbidding municipal broadband networks.

The FCC, however, remains undeterred by the ruling. Chairman Wheeler said in a statement to the press that the commission would continue to push for cities to build their own broadband and, if necessary, would back other efforts to overturn the non-competition laws.

"In the end, I believe the Commission's decision to champion municipal efforts highlighted the benefits of competition and the need of communities to take their broadband futures in their own hands," Wheeler said.

"In the past 18 months, over 50 communities have taken steps to build their own bridges across the digital divide. The efforts of communities wanting better broadband should not be thwarted by the political power of those who, by protecting their monopoly, have failed to deliver acceptable service at an acceptable price."

The FCC says it will "consider all legal and policy options" in the case going forward. ®

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