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

NEWS ANALYSIS: The Federal Communications Commission was slapped down in its effort to preempt state laws about municipal broadband, but this case wasn't about whether wide broadband access is a good idea.

FCC Broadband Rul 2

When the Federal Communications Commission issued its rule preempting state laws that limited local governments' authority to build broadband networks, the commissioners' comments were all about why broadband deployment is good for all concerned.

Now that the Sixth Circuit Court of Appeals has struck down that attempt, the complaints from those same commissioners are a refrain on the same theme. Wide access to broadband Internet access is a valuable goal, they're saying.

What the three commissioners on the losing side are ignoring, perhaps intentionally, is that the challenges to the FCC preemption aren't about broadband. More to the point, the court's decision is about the relationship between the individual states and political subdivisions within them. The court ruled that the Constitution doesn't give the FCC the right to interfere in those relationships.

But to read the moaning and groaning about the decision, you'd never know that. The complainers are making statements about how the court is coming out against broadband. It's not.

In the case of the FCC preemption effort, the two states involved, North Carolina and Tennessee, had laws that limit what their cities can do with municipal services. In both cases, the state laws prevented cities from extending city services beyond the borders of the municipalities involved. In one case the law in question focused more on electrical services and broadband was an extension of the law.

But in both cases, the FCC's actions were viewed as an unconstitutional extension of power by a federal agency. By now, you're probably wondering why it matters whether cities can extend their services beyond the city limits, but depending on how a state's government is structured, it can make a lot of difference.

Historically, cities and their suburbs have not always had an amicable relationship. In many cases, city residents pay different taxes than residents in the counties beyond city limits and in many cases they get different services for their tax dollars. This relationship can become adversarial when cities use the difference in services as a rationale for expansion, such as when a city annexes some land in the counties surrounding it.

The reason that states put a limit on the expansion of city services depends on the state, but in many cases it's to preserve a clear line between what constitutes the city and its citizens, versus what defines regions outside the city.

Examples of this difference can go far beyond broadband, extending into everything from parking regulations, leash laws and even deer hunting. The states have an interest in preserving these differences, even when they extend to services such as electrical power and broadband.

What the FCC was doing was to override the states and the relationships with their political subdivisions without regard to why those differences exist, whether they make sense and how it would otherwise affect city governments and the governments of the surrounding counties. This is why the court ruled against the FCC.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...