The FCC shouldn’t vote to pre-empt state laws in...

Wednesday at a National Conference of State Legislatures summit in Minneapolis. The FCC’s upcoming debate over pre-emption petitions from the cities of Chattanooga, Tennessee, and Wilson, North Carolina, will focus on the debate over legal authority rather than whether cities should “get into the broadband business” or whether the states should restrict municipal broadband, Berry said. The commission could reach a decision on the Chattanooga and Wilson petitions by the end of the year, Berry said according to the prepared text of his speech (http://fcc.us/1nba16B). The cities filed their petitions with the FCC late last month (CD July 28 p5). Berry cited the Supreme Court’s 2004 decision in Nixon v. Missouri Municipal League that the FCC didn’t have the power to pre-empt state laws restricting municipalities’ ability to provide telecom services under Communications Act Section 253 absent “unmistakably clear” legislative intent from Congress. Nixon provides courts with a two-step test for analyzing any case stemming from an FCC decision on the Chattanooga and Wilson petitions, in which courts must look at whether Congress specifically intended the FCC to pre-empt state municipal broadband laws and whether a clear statement is required, Berry said. Chattanooga and Wilson are asking for pre-emption under Section 706 rather than Section 253, but “the case for preemption is even weaker under Section 706 than it was under Section 253,” he said. Section 706 “does not come close” to meeting that burden,” so any pre-emption attempt would be “sure to meet its end in court,” Berry said. Pre-emption would bring the FCC into conflict with both Congress and state officials “who should be our partners rather than our adversaries,” he said. “We do not have the bandwidth to waste on a symbolic, feel-good effort that appears designed to appease a political constituency that is unhappy with where the FCC is headed on other issues.” The House voted last month to deny the FCC funding for municipal broadband pre-emption (CD July 17 p3). Americans for Tax Reform President Grover Norquist said in a statement that the FCC “should not waste valuable time and taxpayer dollars in futile legal wrangling. It’s none of the FCC’s business if state governments forbid cities from wasting taxpayer dollars."