State Officials Push Back Hard on Pre-emption

Pledge to Fight Federal Efforts to Insulate Muni Broadband

Groups representing state legislatures -- including some state legislators themselves -- joined with ones made up of state regulatory commissioners and governors Monday to talk with reporters about the threat of the Federal Communications Commission  pre-empting state municipal broadband laws.

That threat has come from both the FCC and the White House.

FCC chairman Tom Wheeler has signaled he plans to vote Feb. 26 on petitions from two municipalities -- Chattanooga, Tenn., and Wilson, N.C. -- seeking federal pre-emption of state laws circumscribing municipal broadband laws. He is widely believed to have the votes to grant those petitions.

Wheeler and President Obama have said they see the laws as efforts backed by incumbent IPSs to prevent competition. The associations that got together Monday to express their collective will to push back against preeemption talked about the need to protect the sovereignty of state laws over the municipalities that are political subdivisions of the states, and legislators from South Carolina and Utah said the laws were meant to prohibit cross-subsidization of broadband and to ensure taxpayers weren't on the hook for muni broadband systems that failed, to the tune of many millions of dollars.

They also expressed concerns about setting a  precedent of federal pre-emption, and where it could strike next.

The groups signaled that if the FCC goes ahead with pre-emption, the agency can expect a tough court fight. They seemed confident that court precedent was in their favor.

The National Conference of State Legislatures (NCSL) and the National Governors Association are against pre-emption of muni broadband laws. The National Association of Regulatory Utility Commissioners (NARUC) has taken no official position, but does not believe the FCC has the authority to pre-empt; noonetheless, a representative of the group said Monday that if Wheeler thinks it is the right thing to do, he will do it.