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.
Court’s Municipal Broadband Decision Was About Lack of FCC Authority
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.