Even before the Federal Communications Commission released the text of its just-voted decision to pre-empt state laws limiting municipal broadband expansion in Tennessee and North Carolina, a pair of Republican legislators introduced legislation to pre-empt that pre-emption.
Rep. Marsha Blackburn (R-Tenn.) and Senator Thom Tillis (R-N.C.) have introduced draft legislation that says it is the sense of Congress that the FCC "does not have the authority under 4 section 706 of the Telecommunications Act of 1996 to prevent any State from implementing any 6 law of such State with respect to the provision of 7 broadband Internet access service (as defined in section 8 8.11 of title 47, Code of Federal Regulations) by such 9 State or a municipality or other political subdivision of 10 such State."
The FCC voted 3-2 in a party line vote to grant the petitions by Chattanooga, Tenn., and Wilson, N.C., to pre-empt state laws preventing them from expanding beyond the utility footprints of their current service. The commission based that authority on Sec. 706, which it says empowers the agency to take immediate action to ensure that advanced telecommunications is being deployed in a reasonable and timely fashion if it concludes that is not the case, as the FCC concluded in it most recent Sec. 706 report to Congress.
The FCC said those state laws limiting geographic buildouts were an impediment to that deployment. The decision only applies to Tennessee and North Carolina, but FCC chairman Tom Wheeler suggested it puts a spotlight on other laws, which he brands efforts by incumbents to prevent competition.
The bill would prevent FCC pre-emption in Tennessee and North Carolina, as well as the 18 other states that have such laws,and any other state that might adopt them.
“The FCC’s decision to grant the petitions of Chattanooga, Tenn., and Wilson, N.C., is a troubling power grab,” Blackburn said. “States are sovereign entities that have Constitutional rights, which should be respected rather than trampled upon. They know best how to manage their limited taxpayer dollars and financial ventures. Ironically, they will now be burdened by the poor judgment of a federal government that is over $18 trillion in debt and clearly cannot manage its own affairs."
Tillis said, “It is disturbing, yet not surprising, that the FCC and chairman Wheeler are attempting to deny the sovereign right of states to make their own laws.”