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Will 6th Circuit Uphold State Sovereignty?

March 21, 2016

Congress ChamberLast Thursday, a three-judge panel from the 6th Circuit Court of Appeals heard a challenge by Tennessee and North Carolina to a 3-2 Federal Communications Commission decision last February that overturned municipal broadband laws in those states.

Lawyers for the two states argued the FCC went beyond the authority given to it by Congress and unlawfully inserted itself between the states and their subdivisions. Joshua Turner, a lawyer representing the state of Tennessee, said, “The case before this court is not about telecommunications policy or the merits of municipal broadband but whether or how the federal government can intercede between a state and its municipal subdivisions.”

In reporting on the case, Broadcasting & Cable highlighted the FCC’s own confusing arguments about whether or it had the authority to overturn Tennessee and North Carolina’s laws. Reporter John Eggerton explained, “The FCC majority in that [February] decision … confirmed it did not have the power to overturn state laws preventing municipal broadband buildouts altogether, but [said] if those states allows such networks, the FCC can pre-empt laws that would limit them.”

Eggerton said judges asked “tough questions” of both sides, however, according to Watchdog.Org, the questions indicated the judges may side with lawyers representing Tennessee and North Carolina. TechFreedom President Berin Szoka was at the hearing and told Watchdog, “[I] think this is how the court is going to rule … The FCC is not fundamentally ruling on communication. It’s trying to change who gets to decide on these networks from the state legislatures to the local governments.”

Watchdog noted that a 2004 Supreme Court decision overturned an FCC order to preempt a broadband law in Missouri, explaining, “The Supreme Court, in that decision, essentially said the federal Communications Act did not prohibit states from imposing municipal broadband prohibitions on local jurisdictions.”

Court watchers won’t have to wait long to see whether the 6th Circuit agrees with that assessment: the 6th Circuit should issue it’s ruling on this matter in June.