ALEC Urges FCC to Respect Federalism, Reject Preemption on Muni Broadband
On August 29, ALEC CEO Lisa Nelson and twenty state legislators sent a letter to the Federal Communications Commission (FCC). They called on the FCC to respect principles of constitutional federalism regarding states’ authority over their local governments. State constitutions or state legislatures create and define the powers of county, city and public utility districts. But the FCC is now weighing whether to eliminate the laws of some twenty states that restrict their respective local governments from going into the business of providing broadband Internet services.
As a matter of public policy, ALEC believes that private sector investment, innovation and competition offers the best approach to ensuring consumers have access to broadband Internet services. According to the ALEC Principles for Communications and Technology:
Local government entry into the provision of wholesale or retail Internet or broadband services in an attempt to create competition should be permissible only in unserved areas and only where no business case for private service exists, upon a vote by local citizens, and subject to protections against cross-subsidies through taxes or other local government service revenues.
Municipal broadband networks should only be considered for areas in which there is little to no business case for the private providers to operate. And in those narrow circumstances, important safeguards such as local votes of the people should be put in place to protect taxpayers and citizens from financial mismanagement or shortfalls.
At stake in the FCC’s proceeding are federalism principles that go far beyond mere policy concerns about the financial soundness of municipal broadband networks. As ALEC’s letter — submitted during the FCC’s public comment period – stated:
[S]tates – not the federal government – are responsible for creating and overseeing local governments. Federal preemption would sever accountability between local and state governments. States would find themselves in an untenable situation in which they could not exercise governing responsibility over their own agents.
Nowhere does the Constitution give federal bureaucrats the power they now seek to entangle themselves in state legislative judgments about the specific purposes, geographic limits, and electoral accountability of local governments.
In the time ahead, expect to hear more from ALEC members on the importance of constitutional federalism principles and the folly of FCC preemption.