Court's Municipal Broadband Decision Was About Lack of FCC Authority

By Wayne Rash  |  Posted 2016-08-13 Print this article Print
FCC Broadband Rule

This may seem like a minor point to many in their zeal to spread broadband access everywhere, but it's a point written into the Constitution. The power of the federal government derives directly from the states. This fact was noted by a number of organizations involved in broadband deployment, including some that are strong proponents of universal broadband access.

"Today’s decision is a victory for the rule of law," said US Telecom's president Walter McCormick. "The FCC's authority is not unbridled, it is limited to powers specifically delegated by the Congress, and it does not extend to preemption of state legislatures' exercise of jurisdiction over their own political subdivisions."

McCormick noted in a prepared statement that while his organization strongly backs the spread of broadband, a more appropriate role for the FCC would be to eliminate administrative roadblocks.

TechFreedom, meanwhile, noted that the FCC's move was a forlorn hope. "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," said Berin Szóka, president of TechFreedom, in a prepared statement. Szóka referred to the court's finding as "Federalism 101."

The problem, unfortunately, seems to be that the current FCC sees its mission as one in which it can extend its control of how the communications industry operates in areas far beyond its charter.

An excellent example of this is the Commission's Open Internet order mandating net neutrality in all things. Despite the fact that most users of the internet are in favor of net neutrality as a concept, there's nothing in the FCC's enabling legislation that allows it to define or enforce net neutrality rules.

Will the FCC learn from this setback? It seems unlikely. "The federal appeals court decision vacating the FCC's preemption of state laws restricting municipal broadband systems is a welcome rebuke to the agency's continuing overreach and efforts to extend its bureaucratic powers," said Randolph May, president of the Free State Foundation, a Maryland think tank.

"While I am not confident that this will be the case, perhaps the court's rebuke will cause FCC Chairman Tom Wheeler to be more cautious about stretching the limits of the FCC's authority in pursuit of dubious policy objectives."

The problem, unfortunately, seems to be that the FCC is more focused on seeing what it can get away with than in confining its actions to what the law allows. One has to wonder whether these ill-fated regulatory attempts will continue until opponents either give up or run out of money. But at this point, there's no indication that the FCC will temper its efforts to extend its reach anywhere and everywhere it can. Perhaps this will encourage Congress to take some action.


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