FCC can knock out state laws that limit broadband, Wheeler warns

Federal Communications Commission (FCC) Chairman Tom Wheeler listens during an open meeting to receive public comment on proposed open Internet notice of proposed rulemaking and spectrum auctions May 15, 2014 at the FCC headquarters in Washington, DC. The FCC has voted in favor of a proposal to reform net neutrality and could allow Internet service providers to charge for faster and higher-quality service. (Photo by Alex Wong/Getty Images)

FCC Chairman Tom Wheeler repeated an earlier pledge to take a hard look at state laws that prevent municipalities from building broadband internet networks, telling members of Congress in a letter that the federal government has the power to trump such laws.

“[M]any states have enacted laws that place a range of restrictions on communities’ ability to invest in their own future. There is reason to believe that these laws have  the effect of limiting competition in those areas,” Wheeler wrote in response to a letter from Sen. Edmund Markey (D-Ma) and Rep. Mike Doyle (D-Pa).

Wheeler’s salvo, which repeatedly invokes the federal preemption power, is likely to fuel the political fight between cities like Chattanooga, Tennessee, which built a high-speed network known as “Gig City,” and big telecom companies that want to put a stop to such projects.

So far, the telecom industry has been getting the upper hand by persuading state legislators to pass laws that forbid city broadband projects, and by throwing buckets of money into local elections. As a result, communities across the country remain limited to the broadband services provided by the likes of Comcast and Time Warner Cable.

Wheeler’s latest comments about “limiting competition” suggest he is serious about stopping the states, and multiple references in the letter to “preemption” explain how the FCC would do so.

The notion of “preemption” itself is based on the so-called Supremacy Clause in the U.S. Constitution, and holds that federal law trumps state laws in the event of a conflict. In recent years, the federal government has invoked the power in fields like food labeling, civil rights and medical devices.

Here is the part of Wheeler’s letter to which telecom industry lawyers will pay special attention (emphasis mine):

I respect the important role of state governments in our federal system, but I know that state laws that directly conflict with critical federal laws and policy may be subject to preemption in appropriate circumstances. I recognize that federal preemption is not a step to be taken lightly without a careful consideration of all relevant legal and policy issue.

This does not mean, of course, that the FCC’s invocation of the preemption power is a slam-dunk. As Vice notes, the telecom industry’s heavy financial support of politicians like Rep. Marsha Blackburn (R-TN) has bought a bill in the House of Representatives that would stop the FCC from overriding the state laws. The bill is unlikely to pass this term, but it does show what Wheeler is up against.

In the meantime, the best hope for defeating state interference with broadband development may come from voters seeing the examples of places like Chattanooga. So far, that city’s broadband network is reportedly attracting a host of companies that have come in search of fast internet — something that is hard to find in many other American communities where the telecom incumbents hold sway.

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