I like the spirit behind Chairman Wheeler’s move to allow municipalities to determine their own broadband future, but unfortunately he does not have the legal standing to take in the matter. The constitution is pretty clear on states’ rights, and the FCC’s regulatory authority is not sufficient to override the Constitution. Wheeler will lose this battle should he chose to fight it. I wish the 25 or so state legislatures would review these laws that they have passed and either repeal them or change the wording to allow communities to develop business relationships that promote open access broadband in a taxpayer neutral fashion.
By: John Eggerton
The National Conference of State Legislatures wrote FCC Chairman Tom Wheeler this week to say they would challenge the constitutionality of any attempt to preempt state laws restricting municipal broadband networks.
Wheeler has said those laws are attempts by ISP incumbents, including cable operators, to prevent competition and that he wants to use the FCC’s authority to loosen “legal restrictions on the ability of cities and towns to offer broadband services to consumers in their communities.”
“On behalf of the National Conference of State Legislatures (NCSL), we write to express our opposition to your recent remarks articulating your desire to preempt state laws regulating taxpayer-funded broadband networks,” wrote Oregon State Senator Bruce Starr, President of NCSL, and Nevada State Senator Debbie Smith, president-elect. “NCSL will challenge the constitutionality of any action on the part of the Federal Communications Commission (FCC) seeking to diminish the duly adopted laws of the impacted states [there are 21 with such laws] or prevent additional states from exercising their well-established rights to govern in the best interests of the voters.”
Pointing out that Wheeler himself has conceded there have been both successes and failures in community broadband, the NCSL leaders ask: “[I]s it that unreasonable policymakers in 21 states have responded by enacting safeguards on municipal networks to mitigate the pitfalls associated with entry?”