The FCC Has No Authority To Overturn State Law Says Court

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scales-308063_960_720The U.S. Court of Appeals yesterday reversed an FCC order to preempt state legal restrictions on municipal broadband projects in Tennessee and North Carolina saying, in effect, the FCC has no authority to overturn state law.  

“I applaud the Sixth Circuit’s decision.” said FCC Commissioner Ajit Pai.  “I warned that the FCC lacked the power to preempt these Tennessee and North Carolina laws and that doing so would usurp fundamental aspects of state sovereignty.  I am pleased that the Sixth Circuit vindicated these concerns.  The court’s decision is a big victory for the rule of law and federalism—a constitutional principle that lies at the heart of our system of government,” he said.  “[Yesterday’s] decision also represents an opportunity for the FCC to turn the page.  Rather than wasting its time on illegal efforts to intrude on the prerogatives of state governments, the FCC should focus on implementing a broadband deployment agenda to eliminate regulatory barriers that discourage those in the private sector from deploying and upgrading next-generation networks.”   

The National Association of Regulatory Utility Commissioners (NARUC) opposed the FCC action before the Sixth Circuit.

“Municipal governments are creations of state law, and their powers exist only because a state has given them a right to exercise them. For the FCC to attempt to remove the restrictions states have imposed on the operation of city governments was an offense to the Constitution, and I am delighted that the Court reversed the decision,” said NARUC President Travis Kavulla.  

“The FCC order essentially serves to re-allocate decision-making power between the states and their municipalities,” Justices Rogers,Hood, and White wrote on the FCC’s decision.

“This is shown by the fact that no federal statute or FCC regulation requires the municipalities to expand or otherwise to act in contravention of the preempted state statutory provisions. 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 FCC relies upon § 706 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 Justices said.

“This is shown by the fact that no federal statute or FCC regulation requires the municipalities to expand or otherwise to act in contravention of the preempted state statutory provisions. 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 FCC relies upon § 706 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 Justices said.

NARUC Committee on Telecommunications Chair Chris Nelson added, “The law is clear. 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. Even the partial dissenter found the law was so clear that the 6th Circuit ‘compelled’ the Court ‘to reverse the FCC’s preemption of the Geographical restrictions of both states’ statutes.’  If the FCC chooses to appeal this to the Supreme Court, I doubt they’ll even consent to hear the case.”

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