States win the right to limit municipal broadband, beating FCC in court

The Federal Communications Commission has lost in an attempt to preempt state laws that restrict the growth of municipal broadband networks.

A three-judge panel of the US Court of Appeals for the Sixth Circuit ruled in favor of the states that opposed the FCC’s rules. "The FCC order essentially serves to re-allocate decision-making power between the states and their municipalities," the judges wrote. "This is shown by the fact that no federal statute or FCC regulation requires the municipalities to expand or otherwise to act in contravention of the preempted state statutory provisions. This preemption by the FCC of the allocation of power between a state and its subdivisions requires at least a clear statement in the authorizing federal legislation. The FCC relies upon Section 706 of the Telecommunications Act of 1996 for the authority to preempt in this case, but that statute falls far short of such a clear statement. The preemption order must accordingly be reversed." The decision was essentially unanimous, with judges John Rogers, Joseph Hood, and Helene White all voting to reverse the FCC's order. Jude White concurred in part and dissented in part, writing a separate opinion to address a few issues not covered in the majority opinion.