While a federal court has ruled that Congress did not give the FCC explicit authority to preempt state laws it sees as impeding broadband buildouts, the will of one member of Congress is clear on that point.
Reacting to last week's decision by the U.S. Court of Appeals for the Sixth Circuit reversing the FCC's preemption of Tennessee and North Carolina municipal broadband expansions, Sen. Ed Markey (D-Mass.), a supporter of the FCC preemption, said he was "disappointed with the court's ruling" but suggested the FCC should not treat it as a stop sign on the road to more muni broadband buildouts.
"Congress intended to provide the FCC the tools needed to encourage deployment of advanced telecommunications networks," he said, "and when states impose barriers to that very deployment, the FCC should act." The court sees it, instead, as an FCC intrusion into state sovereignty that lacked a clear congressional mandate.
The FCC had said its statutory authority (in sec. 706 of the 1996 Telecommunications Act) to regulate to insure advanced telecom was reaching all Americans in a reasonable and timely fashion extended to preempting state laws limiting broadband buildouts.
But the court concluded that absent an express grant of authority by Congress, that did not extend to preempting a state's right to control those buildouts.
The court pointed out that the FCC wanted "to pick the decision maker for the discretionary issues of expansion, rate setting, and timeliness of rollout of services....notwithstanding Tennessee’s and North Carolina’s statutes that have already made these choices." It said that "if Congress has the power to allocate state decisionmaking, it must be very clear that it is doing so," and Sec. 706 lacks such a clear statement.
"Because Sec. 706 cannot be read to limit a state’s ability to trump a municipality’s exercise of discretion otherwise permitted by FCC regulations, Sec. 706 cannot be read to authorize such preemption," the court said.
Markey, a member of the powerful Senate Commerce Committee, obviously saw it differently and vowed to "continue to fight to ensure that local communities have the power to decide for themselves how to invest in their own telecommunications infrastructure.”
The court did not weigh in on whether Sec. 706 "provides the FCC any preemptive power at all, (2) whether Congress, if it is clear enough, could give the FCC the power to preempt as it did in this case," and whether a "clear statement" from Congress would be required for preemption in case where "a State required its municipality to act contrary to otherwise valid FCC regulations."
The FCC does not have a regulation requiring municipalities to expand their buildouts, for example.