by Sam Hieb
This U.S. 6th Circuit of Appeals decision certainly won’t get as much press as the 4th Circuit Court’s recent decision on North Carolina’s voter ID law, but it is significant nonetheless.
CJ’s Barry Smith reports the 6th Circuit’s three-judge panel ruled that the Federal Communications Commission overstepped its authority when it pre-empted laws passed by N.C. and Tennessee regulating municipal broadband services:
Federal law “does not contain a clear statement authorizing pre-emption of Tennessee’s and North Carolina’s statutes that govern the decisions of their municipal subdivisions,” the ruling says.
Berin Szoka, president of Tech Freedom, a free-market think-tank, said Wednesday’s decision came as no surprise to him.
“It should have been obvious that the FCC was going to lose before [it] started down this path,” Szoka said. “And if it wasn’t obvious then, it should have been crystal clear after oral arguments because the decision is exactly what the arguments laid out, what the judges said.”
Szoka said the decision is a win for federalism.
“It reaffirms that federal agencies can only pre-empt state authority when they have a clear statement from Congress that Congress is asserting the ultimate supremacy of the federal government and absent that, they can’t regulate or pre-empt,” Szoka said.
Yours truly reported on this issue in anticipation of the FCC’s decision back in 2015. The key issue then–as now–is the City of Wilson’s Greenlight broadband network, which was financed by $28 million in Certificates of Participation—municipal debt which does not require voter approval. One element of N.C.’s 2011 law required cities to hold a referendum on the issue before launching a broadband service.