Kossacks with an interest in broadband and infrastructure issues may be familiar with efforts by telecomm giants to limit local governments from providing to the public high-speed access to the Internet. See, for example, these diaries by tmservo433 and kos.
To some extent, such efforts have met with success. For example, Tennessee, North Carolina and 18 other States have adopted statutes that, to a greater or lesser extent, restrict communities from offering internet connectivity.
During the legislative session which is drawing to a close, Congresswoman Marsha Blackburn (R-Tenn) introduced an amendment to the Fiscal Year 2015 Financial Services Appropriations Bill to block the Federal Government from pulling the plug on such statutes.
We don't need unelected federal agency bureaucrats in Washington telling our states what they can and can't do with respect to protecting their limited taxpayer dollars in private enterprises. Inserting the FCC into our states' economic and fiscal affairs sets a dangerous precedent and violates state sovereignty in a manner that warrants deeper examination.
Two weeks ago, the Amendment
passed the House by a vote of 228-200, on party lines.
It remains to be seen what the Senate will do, and what the House-Senate Conference Committee will do.
In the meantime, the Federal Communications Commission is soliciting comments concerning the possibility of striking down the Tennessee and North Carolina statutes on the grounds of Federal Preemption. More below the orange Cloud.
By Public Notice of July 28, 2014, DA 14-1074, the FCC is soliciting comments in WCB Docket Numbers 14-115 and 14-116 as to whether the FCC should invoke the doctrine of Federal Preemption with respect to the Tennessee and North Carolina statutes..
The Doctrine.
The Supremacy Clause found in Article VI of the Constitution empowers the Congress to
preempt state laws. In the case known as Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 605 (1991), the Supreme Court of the United States found that this preemption power extends to state laws and to local ordinances.
There are different flavors of Federal Preemption. Express Preemption arises from language of a federal statute that reveals an express Congressional intent to preempt state law. Field Preemption arises if Congress has legislated so comprehensively that the Federal legislation so extensively occupies an entire area that no room is left for States or State subdivisions to supplement the Federal law, or if a Federal statute or regulation deals with a field in which the Federal interest is so dominant that the Federal interest is deemed to prohibit enforcement of State or local laws. Under Field Preemption, Congressional legislation and a Federal administrative agency’s regulations and decisions determine whether, and if so, to what extent,
Federal law preempts state or local regulation.
Preemption may result from Congressional action. It may also result from Rule Making or adjudication by a Federal agency acting within the scope of its Congressionally delegated authority. Federal regulations have the same preemptive force as Federal statutes.
The Petitioners and the Proceedings.
The Electric Power Board of Chattanooga, Tennessee is an independent board of the City of Chattanooga. The Electric Power Board that provides electric and broadband service in the Chattanooga area.
The City of Wilson, population 49,610, and the County Seat of Wilson County, is located in eastern North Carolina, about 40 miles East of the State capital, Raleigh. The City is "proud to be North Carolina's Gigabit City." Wilson has some of the fastest broadband speeds in the United States. The City also provides electric service in six counties in eastern North Carolina, and broadband service in Wilson County.
On July 24, 2014, the Electric Power Board, and the City of Wilson, each filed a separate petition asking that the FCC, pursuant to Section 706 of the Telecommunications Act of 1996, move to preempt those portions of Tennessee and North Carolina statutes that restrict their ability to provide broadband services.
Section 706 of the Telecommunications Act of 1996, Pub. L. No. 104-104, § 706, 110 Stat. 56, 153, reads as follows:
SEC. 706. ADVANCED TELECOMMUNICATIONS INCENTIVES.
(a) In General: The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.
(b) Inquiry: The Commission shall, within 30 months after the date of enactment of this Act, and regularly thereafter, initiate a notice of inquiry concerning the availability of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) and shall complete the inquiry within 180 days after its initiation. In the inquiry, the Commission shall determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. If the Commission's determination is negative, it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.
(c) Definitions: For purposes of this subsection:
(1) Advanced telecommunications capability: The term 'advanced telecommunications capability' is defined, without regard to any transmission media or technology, as high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.
(2) Elementary and secondary schools: The term 'elementary and secondary schools' means elementary and secondary schools, as defined in paragraphs (14) and (25), respectively, of section 14101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 8801)
Each of the Petitioners allege that the state laws at issue restrict their ability to expand their broadband service offerings to surrounding areas where customers have expressed interest in these services. Each requests that the Commission preempt such laws, as it would be in the public interest to do so.
We must expect that at least the two State Governments whose laws are at issue, and possibly other States, as the telecomm giants will put their two cents in, and then some. Their arguments are predictable; their agenda is clear. Fish gotta swim, birds gotta fly, monopolies gotta monopolize. Keep ur soashalism offa teh Internets.
If you would like local governments to be able to offer Internet connectivity, you should file comments, so that the record on which the FCC acts is not one-sided and tilted toward private interests.
(If there is sufficient interest on the part of at least some Kossacks to do a joint filing, I may be able to lend a hand. I have experience in the field.)
In both proceedings, Comments are due by August 29, 2014. Reply Comments are due by September 29, 2014. Comments and Reply Comments can be filed through the Commission's electronic filing system ECFS.