Tennessee blasts 'unprecedented' FCC broadband ruling as unconstitutional in appeals court

Tennessee blasts 'unprecedented' FCC broadband ruling as unconstitutional in appeals court

September 24th, 2015 by Ellis Smith in Business Around the Region

Herbert Slatery speaks to reporters about his appointment as attorney general in the Tennessee Supreme Court chamber in Nashville, Tenn., on Monday, Sept. 15, 2014. Slatery previously served as Republican Gov. Bill Haslam's chief legal counsel. (AP Photo/Erik Schelzig)

Photo by Erik Schelzig

Tennessee accused the Federal Communications Commission of unlawfully violating state sovereignty in an appeal filed last week, alleging that the federal government is attempting to arbitrarily rewrite state law and vest itself with new powers not granted by the Constitution.

The appeal was filed in response to an FCC ruling that struck down the state's geographic limits on city-owned utilities' broadband offerings.

The widely anticipated ruling came as no surprise: FCC Chairman Tom Wheeler has name-checked Chattanooga in speeches, calling it a poster child for both "the benefits of community broadband networks, and also a prime example of the efforts to restrict them."

Gallery: Tennessee blasts 'unprecedented' FCC broadband ruling as unconstitutional in appeals court

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Wheeler told a telecommunications association in April 2014 that he intended to exercise what he believes is the FCC's power to eliminate state restrictions on municipal broadband. Three months later, EPB and the city of Wilson, N.C., petitioned the FCC to expand their municipal broadband network beyond the boundaries of their respective electric systems.

EPB's gigabit service, the fastest in the western hemisphere at the time of its unveiling, has drawn particular praise from consumer advocates and regulators who see such municipal networks as a way to get around cable monopolies, which have been slower to roll out ultra-high-speed broadband.

But the broadband brouhaha raises constitutional questions on the limits of federal authority in regulating Internet infrastructure, and creates unusual battle lines that have turned state governments against municipal and federal authorities, as officials weigh the threat to state sovereignty against the potential benefits of expanded broadband in underserved regions.

The issue of whether the FCC can strike down state broadband rules goes far beyond the borders of Tennessee, pitting an alliance of mayors and commissioners against an alliance of legislators and governors. Hundreds of nonprofit groups, business associations and concerned citizens have waded into the debate with research, letters to the FCC and lobbying.

The debate reached such a pitch that the House of Representatives passed a measure 223-200 that would freeze the FCC's funding if it overturns state prohibitions on the expansion of municipal broadband.

In granting their petitions, the FCC wrote that both Tennessee and North Carolina had created barriers to broadband deployment in violation of the Telecommunications Act of 1996, a law that the agency said gives it the authority to strike down such barriers. In essence, the FCC excised any parts of the Tennessee code that would limit EPB's ability to offer its broadband services statewide.

But Tennessee, in its appeal, responded that FCC's new interpretation would give unelected federal regulators carte blanche to interfere in other state functions, so long as those functions have something to do with broadband, a stance the state says could conflict with Supreme Court rulings as well as the FCC's own policy prior to 2014.

The FCC's move would also violate the country's founding concept of separation of state and federal power, Tennessee argued, citing the 10th amendment in the Constitution that reserves the "power not delegated to the United States" for "the states respectively, or to the people."

"In rewriting Tennessee law, the order does much more than impose federal communications policy," the state argued in its appeal. "It abandons past precedent and redefines the relationship between state and municipal governments by expanding the territorial jurisdiction of a local governmental unit."

EPB spokesman J.Ed. Marston declined to comment on substance of the appeal, but he said the city-owned utility is working with the FCC to provide information and other help.

EPB is keeping its options open. Even as the state's appeal makes its way to the Sixth Circuit Court of Appeals, EPB is also pursuing a legislative change that would accomplish at a state level what the FCC is attempting to do from Washington, D.C.

"A change in state legislation is the quickest and best way forward for Tennesseeans who currently don't have fiber or other kinds of broadband services," Marston said. "Our primary focus right now is working with an increasingly growing number of state legislators who support that type of change."

EPB has previously asked state lawmakers to allow it to compete in a broader area over the past two decades, according to the state's appeal. But the Tennessee General Assembly declined to enact two such bills.

If EPB gains the authority to expand, it already has several communities on a waiting list. Athens, Tenn., Dayton, Tenn., and Bradley County, among others, have all asked EPB to expand its service to meet the needs of their constituents, some of whom live in rural areas that have poor access to broadband.

However, EPB is waiting to see how Tennessee's appeal turns out before taking any action.

Contact Ellis Smith at esmith@timesfreepress.com or 423-757-6315.


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