FCC Releases Muni Pre-emption Order

The Federal Communications Commission was in full release mode March 12, following its online posting of the final Open Internet order with the final order on pre-empting Tennessee and North Carolina laws limiting municipal broadband. The order grants the petitions by the Electric Power Board of Chattanooga (TN), and the City of Wilson (NC), "to pre-empt certain challenged provisions of Tennessee and North Carolina law restricting municipal provision of broadband service." The pre-emption only applies to those two cities, but others are expected to follow suit, and FCC Chairman Tom Wheeler has conceded this decision provides guidance on what the FCC would do with similarly situated municipal networks.

The FCC is justifying the move under its Sec. 706 authority to regulate if it concludes that advanced telecommunications is not being deployed in a reasonable and timely manner, which it has concluded in its recent reports to Congress on the state of high-speed broadband. "We read section 706 to permit the commission to preempt state laws that primarily serve to regulate competition in the broadband market," the order states. The order points out that the FCC has taken other pre-emption actions to further competition, including state laws on deployment of wireless facilities or restrictions on competitive cable franchises.