FCC Loses in Attempt to Preempt State Laws

August 16, 2016

Last week, a Federal Communications Commission order was struck down by the Sixth Circuit Court of Appeals. The order preempted state laws in North Carolina and Tennessee that restricted the ability of municipal broadband providers to expand their service area. The FCC cited part of the Telecommunications Act of 1996 as its authority to preempt the laws on the basis of “removing barriers to infrastructure investment and by promoting competition in the telecommunications market.”

Tennessee and North Carolina separately challenged the order and their cases were consolidated before the Sixth Circuit. Tennessee argued the order violated the Constitution by infringing upon its right to determine the boundaries of its political subdivisions. Both states argued that Congress failed to provide a necessary clear statement in the law authorizing such an order. Eleven Republican Attorneys General also made this argument in an amicus brief they filed in the case.

The Sixth Circuit ruled in favor of Tennessee, North Carolina and the amici States. They argued the Supreme Court’s opinion for Nixon v. Missouri Municipal League requires a clear statement of authority from Congress before a federal agency can infringe on areas typically regulated by the States. The judges also held “nowhere in the general charge to ‘promote competition in the telecommunications market’ is a directive to do so by preempting a state’s allocation of powers between itself and its subdivisions.”

This decision by the Sixth Circuit marks another key victory by the States against an overreaching federal government. The past seven and a half years have seen the Obama Administration use reinterpretations of federal law to expand its regulatory reach into areas typically overseen on the states level. However, Republican Attorneys General, in this case and many more, are on the front lines fighting against illegal and unconstitutional power grabs by the federal government.