FCC Loses It’s Muni Broadband Test Case. What Comes Next?

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[Commentary] While that seems obvious, we often miss it in policy debates. But it is rather important to keep in mind when reading Tennessee v. FCC. In a case released August 10, the Sixth Circuit reversed the Federal Communications Commission (FCC) 2015 Order preempting restrictions the state of Tennessee and the state of North Carolina imposed on their municipalities with regard to providing broadband service. While Commissioners Pai and O’Reilly are certainly entitled to their victory laps, it is equally important to applaud Chairman Wheeler and Commissioners Rosenworcel and Clyburn for doing what they believed was both the right policy and the right call under the law. The petitions from the City of Wilson, NC, and from the Electric Power Board of Chattanooga, TN, raised novel questions of law. The FCC’s Order was a test case. On a very narrow and murky legal question, the FCC majority bet wrong — at least according to the 6th Circuit. I thought the FCC majority had the better argument. But I can’t say the Sixth Circuit was utterly wrong in holding the contrary.


FCC Loses It’s Muni Broadband Test Case. What Comes Next?