The FCC can’t use Section 706 of the...

The FCC can’t use Section 706 of the Communications Act to pre-empt state laws prohibiting municipal broadband, Phoenix Center President Larry Spiwak said Thursday in a blog post (http://bit.ly/1miLam2). The agency plans to announce an approach by mid-May on how best to challenge bans on community broadband (CD April 29 p3). “Basic lawyering reveals three glaring infirmities” in the argument that Section 706 gives the FCC legal authority to pre-empt state laws, Spiwak said: First, Section 706 applies only to forbearance, not pre-emption -- and there’s a “big legal difference between the two concepts.” Second, Section 706’s forbearance authority relates to Section 10 of the Communications Act, Spiwak said, and “there is absolutely nothing in Section 10 which permits the FCC to preempt any state law or regulation.” It’s limited to the FCC exercising forbearance only over its own implementation of portions of the Communications Act, he said. Finally, the Verizon v. FCC case that struck down the agency’s net neutrality rules not only gives the agency power to oversee broadband ISPs, but also gives state public utility commissions “the same ability to regulate broadband service providers,” Spiwak said. “Let’s assume arguendo the FCC attempts to use Section 706 to preempt a state law restricting municipal broadband but the local state PUC (exercising the same authority) says ‘go to hell.’ Who wins? My money is on the state PUC: if the FCC can’t preempt using its direct authority under Section 253, then the chances of using its indirect authority under Section 706 are slim to none."