This week the U.S. Court of Appeals struck down an FCC decision that would have allowed 2 municipalities, one in Tennessee and one in North Carolina, to expand their Internet broadband services. Both Tennessee and North Carolina have state laws that limit the ability of municipalities to provide broadband services outside of their established service areas.
In separate requests, both municipalities asked the FCC to preempt the state law and allow them to expand their broadband service areas. On February 26, 2015, the FCC adopted an Order granting both requests. At the time, the FCC found that the restrictions were barriers to the expansion of broadband service and prohibited competition. The FCC relied on §706 of the Telecommunications Act of 1996, that directed the FCC to “encourage the deployment…of advanced telecommunications capability to all Americans… [by promoting] competition… [and removing] barriers to infrastructure investment.”
The 6th Circuit found that the FCC did not have the authority to preempt state law. Supporters of the 6th Circuit decision view this as a win for state’s rights and feel that the FCC overstepped its authority when is struck down the state laws limiting the municipalities broadband service areas. Chairman Wheeler has released a statement that includes that, “The FCC’s mandate is to make sure that Americans have access to the best possible broadband. We will consider all our legal and policy options to remove barriers to broadband deployment wherever they exist so that all Americans can have access to 21st Century communications.”
