N.C. Muni Broadband Case Against FCC Combined With Tennessee in 6th Circuit
The case North Carolina recently filed against the FCC was moved to the 6th U.S. Circuit Court of Appeals in Cincinnati, after a petition to move and consolidate the case with the one in Tennessee was granted in docket 15-506…
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(see 1505150043). North Carolina and the U.S. did not oppose the motion, the document said. In the same docket, National Association of Regulatory Utility Commissioners (NARUC) requested leave to intervene in support of North Carolina in the proceedings. The member commissions are, like municipalities, creatures of the state and they have their authority and jurisdiction specified by the state, said NARUC. Any federal effort here through pre-emption has obvious and direct implications for NARUC members, it said. The 4th Circuit in Richmond said the filing is considered moot and that the 4th Circuit doesn't intend to act on the motion. Lawyer William Kirsch also requested leave to intervene in the case because North Carolina is “correct that the FCC pre-emption is otherwise contrary to law,” he said in a filing with the 4th Circuit. The FCC denial of a fee waiver for information about rural telecom cooperatives is contrary to law as a failure to consider alternatives, Kirsch said. From the standpoint of constitutional federalism, the action the FCC has taken in regard to North Carolina and Tennessee is one of the most problematic ever taken by the commission, said Seth Cooper and Randolph May on the Free State Foundation's website. "The FCC's claims of preemptive authority to interfere with the exercise of states' discretion over their political subdivisions clash with fundamental principles of constitutional federalism," they wrote. "The Supreme Court's jurisprudence has long recognized that states have broad discretion to delineate the powers local governments may exercise."