The Federal Communications Commission (FCC), which had been on a bit of a winning streak under Chairman Tom Wheeler, was dealt a significant blow this week.
The 6th Circuit U.S. Court of Appeals, which has jurisdiction over Ohio, Kentucky, Michigan and Tennessee, found that the FCC couldn’t stop states from controlling the expansion of city broadband networks.
The case involves municipal broadband projects in Chattanooga and Wilson, NC. The cities wanted to expand existing municipal broadband networks, which violates state laws. Last year, the FCC preempted those laws and enabled the expansion. That move was invalidated by the 6th circuit decision, according to The Hill.
The issue is important to the extent that limitations imposed by states make gaps in broadband coverage likely to be larger and more numerous. In some cases, carriers don’t see the economic benefit in providing service to sparsely populated areas. Thus, if contiguous municipalities are kept from providing those services, the area could be left without service.
It is widely believed that carriers lobby very hard at the state level to put such laws in place as a way to reduce competition – even if they don’t end up creating networks themselves. The Hill cites The Open Technology Institute’s claim that such laws are on the books in “at least” 19 states.
The three-judge panel’s decision was “essentially” unanimous, though one of the judges wrote a separate opinion that concurred in part, dissented in part, and covered some issues not in the majority opinion, according to Ars Technica.
Though the decision means that there is a long road ahead to creating the competitive framework the commission intended, the subject is not closed.
The FCC also could ask for an en banc review of the case in which all the circuit’s judges participate, according to Ars Technica. The court’s website lists 23 judges. There also is a legislative option. Congress could take action. It is worth noting that the decision isn’t based on the legitimacy of municipalities expanding their services. It focused on whether the FCC has the right to neutralize state laws to enable such projects to go forward. It found that it didn’t. However, Congress could give it that right.
Still another option is the simplest – but perhaps most time-consuming. The residents of states could elect legislators who favor municipal broadband. Congressional action is seen as unlikely due to the Republican/Democratic divide at the federal level. However, Vox points out that there is more agreement at the state level on the value of healthy municipal broadband. The story points out that Tennessee State Representative Kevin Brooks, a Republican, is a key broadband advocate.
Carl Weinschenk covers telecom for IT Business Edge. He writes about wireless technology, disaster recovery/business continuity, cellular services, the Internet of Things, machine-to-machine communications and other emerging technologies and platforms. He also covers net neutrality and related regulatory issues. Weinschenk has written about the phone companies, cable operators and related companies for decades and is senior editor of Broadband Technology Report. He can be reached at [email protected] and via twitter at @DailyMusicBrk.