Markey Backs FCC Municipal Broadband Preemption

State AGs take other side in court case
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Senate Commerce Committee member Ed Markey (D-Mass.) filed an amicus brief Thursday in support of the FCC's decision to preempt state laws limiting municipal broadband buildouts in Tennessee and North Carolina. That came after a number of states, though not including his home state, had weighed in against the FCC.

Markey had rooted the FCC on, last year urging it to "ensure local communities are not inhibited by state laws if they wish to pursue the creation of their own broadband networks."

The states of Tennessee and North Carolina challenged the FCC decision. 

In a brief to the U.S. Court of Appeals for the sixth circuit, which is reviewing the decision, Sen. Markey said that in some cases of communications regulation, federal interests "override state and local policy," and this was one of those.

Markey cited Sec. 706 of the Telecommunications Act on 1996, which says the FCC can regulate to insure advanced telecommunications is made available nationwide, including preempting state laws in conflict with that mandate.

Markey suggested he knew what Congress had in mind in Sec. 706 since he was the House author of the act.

"Congress intended to provide the FCC the tools necessary to encourage deployment of advanced telecommunications networks, and when states impose barriers to that very deployment, the FCC has no choice but to act," Markey said in his brief.

On the other side of the argument, state attorneys general also weighed in with the court this week on the side of Tennessee and North Carolina.

In their amicus brief, AGs from Arkansas, Arizona, Colorado, Florida, Idaho, Michigan, Ohio, South Carolina, Utah and West Virginia said the two states' limitations on municipal broadband networks are reasonable in the interests of fiscal accountability and the preemption illegal.

They said they are all for encouraging innovation and increasing access to broadband, but that "[t]he FCC’s broad preemption of state municipal broadband regulation eliminates States’ control over their own subdivisions and frustrates state efforts to increase access to broadband."

They said the FCC decision leaves states with only two choices: "They can either allow municipal broadband without important checks on abuse and mismanagement, or they can eliminate municipal broadband altogether."

The FCC said it does not have the authority to preempt laws that disallow municipal broadband, only those that limit its expansion once a state has approved a buildout.

They called the FCC move arbitrary and counterproductive.

Somewhat surprisingly, the Justice Department is taking no position on the FCC move, even though President Barack Obama encouraged it.

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