Only Congress, not the FCC, Can Preempt State Laws Affecting Broadband Deployment

Yesterday, Chattanooga, TN and Wilson, NC filed petitions to the FCC requesting that the Commission overturn state laws restricting the expansion of their municipal broadband networks. But overturning these laws to enable government-run broadband would needlessly cost taxpayers millions of dollars, without actually delivering a better product than what’s possible with increased private competition.

“Americans want faster, cheaper broadband and, yes, more choices, but not government-run broadband — especially not after the revelations of the last year about Internet surveillance,” said Berin Szoka, president of TechFreedom. “Government-run broadband has been a dismal failure.”  Szoka pointed to Provo, Utah, which spent $39 million in taxpayer dollars to build broadband network, only to turn around and sell it to Google for $1 “after realizing that cities aren’t very good at running high-tech networks.”

“The real answer here is making it easier for all private companies to deploy broadband,” Szoka argued.  But some state laws restrict cities from leasing municipal property such as unused fiber or from co-locating servers on municipal property. “Let’s focus on clearing the kind of red-tape that made Verizon give up on deploying FiOS in cities like Baltimore and Boston — and ending the NIMBYism that has stymied’s efforts to deploy fiber in San Francisco, the tech capital of the nation,” Szoka said.  “Even Google decided to exclude ‘The City that Never Stops Complaining’ from its Bay Area fiber plans.”

The FCC has no legal authority to preempt any of these laws, Szoka said. Section 706 of the Telecommunications Act of 1996, which the agency cites as its source of power, “simply is not an independent grant of authority,” explained Szoka, citing TechFreedom’s detailed legal comments on net neutrality.  “Any preemption effort will fail in court because Section 706 is not ‘unmistakably clear’ in preempting state sovereignty,” as required by Supreme Court precedent. “It’s up to Congress, not the FCC, to resolve these questions — and there’s plenty Congress could do to make competition easier, starting with the FCC’s 2010 National Broadband Plan and including preempting barriers to private deployment. Meanwhile, cities should focus on installing ‘Dig Once’ conduits under streets so that private companies can rent space for their fiber.”

See our other work on municipal broadband and barriers to broadband deployment especially: