FCC Will 'Rue the Day' It Used Section 706 To Justify Muni Broadband Pre-emption, Cleland Says
The FCC is going to “rue the day” it chose to exercise its Telecom Act Section 706 authority in the way described in its municipal broadband pre-emption order, NetCompetition Chairman Scott Cleland said Friday during a Broadband US webcast. The…
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agency relied heavily on Section 706 in the order it released Thursday granting petitions from the Electric Power Board of Chattanooga, Tennessee, and Wilson, North Carolina, to pre-empt North Carolina and Tennessee state laws that contain restrictions on municipal broadband deployments (see 1503120060). The commission interpretation of Section 706 relies too heavily on the U.S. Court of Appeals for the D.C. Circuit’s reading of the statute in its Verizon v. FCC ruling, Cleland said, calling the interpretation a grant of “balsa wood authority.” Cleland and other industry observers who spoke during the webcast said the order is likely to face legal challenges, with Cleland saying it is destined to end up before the Supreme Court. Baller Herbst lawyer Jim Baller, who represented EPB and Wilson in the FCC petitions, disputed claims that the order explicitly states that the commission doesn’t have authority to pre-empt state laws that institute a flat ban on municipal broadband deployments. CenturyLink Vice President-Federal Regulatory Affairs Jeff Lanning said the order acknowledges that distinction. The FCC is “making it very clear” that it will rule against any petition that seeks pre-emption of a flat ban, Lanning said.