Wheeler Talks Up Pre-emption

Says There Are Serious Questions About ISP Competition

FCC chairman Tom Wheeler says he has big questions about whether cable operators and telcos will continue to make competitive broadband upgrades or offer consumers at least two options for broadband, which is one reason why he went the Title II route in adopting new Open Internet rules and went the preemption route in the cases of municipal broadband buildouts in two states.

That came in a speech Tuesday at the Broadband Communities Summit in Austin, Tex.

"Despite good news in places like Austin, the days of telcos and cable assuring consumers at least two competitive choices for Internet access are in doubt," he said. 

He also suggested that was why he had supported preempting state laws that limited municipal broadband competition. "When local leaders have their hands tied by bureaucratic state requirements, local businesses and residents are the ones who suffer the consequences," he said.

The FCC in February voted, along party lines, to preempt state laws in Tennessee and North Carolina that limited municipal broadband expansion in Chattanooga and Wilson. In fact, he said leaders in those city's were the FCC's idea of "rock stars."

The FCC's February decision only applies in those states, but Wheeler has said the FCC would treat similarly situated complaints from other states, well, similarly. "I hope [the decision] highlights and discourages the efforts of incumbents to block consumer choice and competition," he said.

He also outlined his view of preemption. "The Commission respects the important role of state governments in our federal system," he said, "and we do not take the matter of preempting state laws lightly. But it is a well-established principle that state laws that inhibit the exercise of federal policy may be subject to preemption in appropriate circumstances. My position on this matter was shaped by a few irrefutable broadband truths:

  • You can't say you're for broadband - but endorse limits on who can offer it,
  • You can't follow Congress' explicit instruction to 'remove barriers' to infrastructure investment - but endorse barriers to infrastructure investment,
  • And you can't say you're for competition - but deny local elected officials the right to offer competitive choices."

The FCC's preemption in Tennessee and North Carolina only applied to expansion of municipal service already authorized by the state. The FCC majority made clear that the FCC did not have the authority to reverse a state law that prevented such buildouts entirely.