FCC Has No Authority to Preempt State Municipal Broadband Laws

[Commentary] However one feels about municipal broadband as a matter of public policy, as a matter of law the Federal Communications Commission has no authority to preempt state laws limiting municipal entry into the broadband marketplace under Section 706 which sanctions regulation to ensure competitiveness.

Indeed, when the Supreme Court first looked at the issue of preemption in municipal broadband in Nixon v. Missouri Municipal League, the Supreme Court went out of its way to note that “it is well to put aside” the public policy arguments favoring municipal broadband to support any “generous conception of preemption.”

Why? Because the issue of preemption is one of statutory interpretation and, as such, “the issue does not turn on the merits of municipal telecommunications services.”

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