WASHINGTON D.C. —­­ Today, the Sixth Circuit Court of Appeals struck down the FCC’s 2015 order preempting state laws and dictating how municipalities make decisions with regard to government-run broadband networks. TechFreedom filed an amicus brief in the case.

It took enormous chutzpah for the FCC to try to preempt state broadband laws, so this is a well-deserved rebuke for an agency run amuck,” said Berin Szóka, President of TechFreedom. “It should have been obvious that the FCC would lose, since the Supreme Court rejected the idea that the FCC could preempt such laws over a decade ago — under far clearer statutory language. The court shredded the FCC’s claim that, while it could not require states to allow muni broadband, it could regulate the conditions under which they governed the networks that cities were allowed to build. This was Federalism 101: the FCC was unconstitutionally interfering with the division of power between state legislatures and municipalities by doing so without a ‘clear statement’ of authorization from Congress.”

This litigation has been a costly distraction from the real issue: how to make broadband deployment easier across the board,” continued Szóka. “The FCC talks a big game about broadband competition, but has been playing political games for years. The agency is less interested in actual progress than in making headlines and stoking a small fringe of activists who prefer government-run networks over private provision of broadband for ideological reasons. The greatest irony here is that the real barriers to deployment come from local governments themselves. And this is where the FCC could actually help: identifying and suggesting ways to cut red tape, lower fees, and build smarter infrastructure that can facilitate deployment. Such reforms would encourage both upgrades from incumbents and new entry from companies like Google Fiber. But in the end, government-run broadband should be a last resort, not a go-to solution.”

Unfortunately, the court did not need to reach the $966 billion question: Is Section 706 really a grant of authority?,” concluded Szóka, who led an amicus brief in the case focused on this question. “If it is, the FCC has carte blanche to regulate not just broadband but any form of communications—the entire Internet economy—in any way that the FCC can claim, however tenuously, somehow promotes broadband and that isn’t prohibited by law. That’s an absurd claim, yet one that two other appeals courts have accepted under the blindly deferential standard of Chevron review. It’s not surprising that the Sixth Circuit didn’t address this, since the Federalism argument here was so easy and courts aren’t supposed to address questions not necessary to their holding. But that leaves the Internet in grave danger of even greater FCC overreach in the future. It could be years before the courts finally address this question, so Congress must act to rein in the agency.”


We can be reached for comment at media@techfreedom.org. See more of our work on municipal broadband, including:

  • Amicus brief filed by TechFreedom, the International Center for Law & Economics, the Competitive Enterprise Institute and law and economics scholars
  • Berin’s post on why the FCC should lose on muni broadband preemption
  • Berin’s blog post on likely outcomes of the case
  • Tech Policy Podcast #21: Broadband Deployment in America with FCC Comm’r Ajit Pai
  • Our statement on reply comments opposing any attempt by the FCC to preempt state restrictions on municipal broadband expansion