The Regulatory Mix, TMI’s daily blog of telecom related regulatory activities, is a snapshot of PUC, FCC, legislative, and occasionally court issues that our regulatory monitoring team uncovers each day. Depending on their significance, some items may be the subject of a TMI Briefing.

Broadband

The US Court of Appeals for the Sixth Circuit reversed the FCC’s 2015 Order preempting Tennessee and North Carolina laws that restricted the expansion of municipal broadband networks.  The Court said: “The FCC order essentially serves to re-allocate decision-making power between the states and their municipalities.  This is shown by the fact that no federal statute or FCC regulation requires the municipalities to expand or otherwise to act in contravention of the preempted state statutory provisions.  This preemption by the FCC of the allocation of power between a state and its subdivisions requires at least a clear statement in the authorizing federal legislation.  The FCC relies upon § 706 of the Telecommunications Act of 1996 for the authority to preempt in this case, but that statute falls far short of such a clear statement. The preemption order must accordingly be reversed.” 

Despite this finding, the Court emphasized the limited nature of its action, saying: “Our holding today is a limited one.  We do not question the public benefits that the FCC identifies in permitting municipalities to expand Gigabit Internet coverage.  Furthermore, we need not, and do not, address a number of legal issues debated by the parties, including (1) whether § 706 provides the FCC any preemptive power at all, (2) whether Congress, if it is clear enough, could give the FCC the power to preempt as it did in this case, (3) whether, if the FCC had such power, its exercise of it was arbitrary or capricious in this case, and (4) whether and to what extent the clear statement rule would apply to FCC preemption if a State required its municipality to act contrary to otherwise valid FCC regulations.”

Reacting to the Court decision, Energy and Commerce Committee Chairman Fred Upton (R-MI) and Communications and Technology Subcommittee Chairman Greg Walden (R-OR) issued a statement saying:

“The Court made the right call. The FCC’s regulatory overreach was not only ill-conceived but illegal, and this direct rebuke should serve as yet another wake up call for the commission to heed the limits of its authority,” said Upton and Walden. “States have been and will continue to be best suited to determine whether municipalities should build out broadband networks using tax-payers’ dollars. The FCC should refocus its efforts on promoting private investment in broadband deployment, embracing the will of states and their citizens.”

All five FCC Commissioners issued statements in response to the Court’s Order, either praising the decision (Commissioners O’Rielly and Pai) or expressing disappointment with it (Chairman Wheeler and Commissioners Rosenworcel and Clyburn. )

National 8-1-1 Day (Call Before You Dig!)

Each year, the Common Ground Alliance and damage prevention stakeholders across the U.S. and Canada celebrate 8/11 Day, or 8-11 on the calendar, with creative and far-reaching campaigns reminding the public and professionals about the importance of digging safely.   A toolkit for corporations is available, along with other important information via this link  http://commongroundalliance.com/damage-prevention/toolkits