6th Circuit Reverses FCC Order Preempting State Municipal Broadband Restrictions

A federal court reversed FCC preemption of state limits on municipal broadband efforts to extend their systems to surrounding communities. The FCC 2015 order "essentially serves to re-allocate decision-making power between the states and their municipalities," said the ruling (in Pacer) Wednesday by a panel of the 6th U.S. Circuit Court of Appeals (State of Tennessee; State of North Carolina v. FCC, Nos. 15-3291/3555). "This preemption by the FCC of the allocation of power between a state and its subdivisions requires at least a clear statement in the authorizing federal legislation. The FCC relies upon § 706 of the Telecommunications Act of 1996 for the authority to preempt in this case, but that statute falls far short of such a clear statement. The preemption order must accordingly be reversed," said the opinion by Judge John Rogers, who was joined by Judge Joseph Hood, with Judge Helene White concurring in part and dissenting in part.

The FCC had faced particularly tough questioning from Judge Rogers at oral argument (see 1603170031). The commission had no immediate comment.