Regulatory Reform

FCC Commissioner’s Staffer Makes Compelling Case Against Muni Broadband Preemption

On August 20, Matthew Berry, Chief of Staff to Federal Communications Commission (FCC) Commissioner Ajit Pai, spoke out in convincing manner against FCC preemption of state laws restricting municipal broadband networks. His remarks revealed the unwise, unlawful and unconstitutional dimensions of the FCC’s power-grab-in-progress.

The FCC is now taking public comment on a pair of petitions seeking preemption of state laws restricting muni broadband networks. One petition seeks federal preemption of a Tennessee law restricting the geographic boundaries of local government-owned broadband networks. Another petition seeks preemption of a North Carolina law that includes local voter approval requirements before such networks can be built. The implications of both petitions extend far beyond muni broadband. Federal preemption on the basis now being considered by the FCC would subvert structural federalism principles underlying the U.S. Constitution.

Berry delivered his remarks at the National Conference of State Legislatures’ (NCSL) 2014 Legislative Summit. As Berry pointed out to the legislators present, Congress nowhere authorized the FCC to preempt states’ authority over their own local governments with respect to muni broadband. He further explained that Section 706 of the Communications Act offers no clear statement of preemptive intent. Such a clear statement is something the U.S. Supreme Court demands before upholding preemption of a traditional state function.

Berry also squarely identified the structural federalism principles that prohibit preemption on the basis that the FCC is now pondering. Remarked Berry:

Sovereignty does not rest with American cities, towns, or counties. Rather, the Supreme Court has stated that local subdivisions merely “are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in their absolute discretion.” In short, under our constitutional framework, states are free to grant or take away powers from municipalities as they see fit. So the basic concept is this: City governments are appendages of state government, but state governments most definitely are not appendages of the national government.

At the 2014 American Legislative Exchange Council (ALEC) Annual Meeting in Dallas, Texas, the Task Force on Communications and Technology had its own briefing on FCC Chairman Tom Wheeler’s unwise and unconstitutional muni broadband preemption plans. That briefing followed a letter by Rep. Blair Thoreson and Sen. Joel Anderson to the FCC in June voicing their opposition to the FCC preemption. It is essential to state sovereignty that states possess the rightful power to pass laws for holding their own local governments accountable and ensuring taxpayers are protected from fiscal irresponsibility by local governments.

ALEC welcomes NCSL adding its voice in opposing FCC preemption of state law restrictions on muni broadband networks. For that matter, ALEC appreciates the logical and common sense views of the constitution and sound communications policy voiced by Matthew Berry. The rest of the FCC should take heed and halt its preemption plans.

In Depth: Regulatory Reform

In his first inaugural address, Thomas Jefferson said that “the sum of good government” was one “which shall restrain men from injuring one another” and “shall leave them otherwise free to regulate their own pursuits of industry.” Sadly, governments – both federal and state – have ignored this axiom and…

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