FCC chairman doubles down on political hubris after court decision

[Commentary] In 2015, the Federal Communications Commission, at the urging of the White House, voted along party lines to preempt portions of Tennessee and North Carolina laws designed to delineate the terms and conditions under which municipalities may construct and deploy broadband Internet networks in order to offer advanced communications services to the general public. Notwithstanding clear Supreme Court precedent holding that this type of preemption is unconstitutional, the FCC nonetheless plowed ahead with its efforts to have the federal government dictate to a state how it governs its municipal subdivisions. For this reason, many leading telecom lawyers predicted that the FCC's order was dead on arrival. Seeing the hopelessness of the FCC's case, even the Department of Justice refused to back the agency on appeal — a very rare refrain. As expected, earlier in August, the Sixth Circuit Court of Appeals in the case of Tennessee v. FCC trounced the FCC's constitutional end-run, finding that "nowhere in [the Communications Act's] general charge to 'promote competition in the telecommunications market' is a directive to do so by pre-empting a state’s allocation of powers between itself and its subdivision." According to the court, this is "fundamental constitutional policy."

By pursuing this nakedly political agenda, FCC Chairman Tom Wheeler has wasted significant federal and state resources litigating his patently unconstitutional power grab. Nevertheless, Chairman Wheeler is far from contrite. If anything, Chairman Wheeler is doubling down on his political hubris. In response to the Sixth Circuit's ruling in Tennessee, Chairman Wheeler retorted that the case perpetuated "anti-competitive broadband statutes" and thus "thwarted" the "efforts of communities wanting better broadband ... by the political power of those who, by protecting their monopoly, have failed to deliver acceptable service at an acceptable price." Moreover, Chairman Wheeler boasted that he would be "happy to testify on behalf of consumer choice" should other "states seek to limit the right of people to act for better broadband." If Chairman Wheeler wants to have a policy debate about municipal broadband, then let's have it.

[Spiwak is the president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies.]