FCC’s Broadband Preemption Analysis and Prediction

There may not be a better example of Washington poignantly ignoring our federalist system than the recent FCC order preempting state laws regarding under what circumstances the municipalities may build and operate a broadband Internet system of their own.  The reasons for municipalities to not take the risk are numerous, but putting aside whether placing the state’s citizens at risk is a good idea or not, the Constitutional issues are troubling.

The FCC ruling seeks to insert the FCC between the state and the political subdivisions it has created seeking to permit towns to do what the state has already told them they cannot do or seeking to end run rules to protect all citizens of the state that are already law.  Laws in nineteen states either prohibit government owned broadband networks or place some limitation (such as transparency) on municipalities if they seek or do provide broadband.  Inserting the FCC into this relationship will have profound negative effects.  Municipalities, untethered from responsibility to the state, could partake in risky schemes of tax funded adventurism placing the entire state and all its citizens at risk as a state would have to scramble to cover any default of a municipality.

How and why did the FCC decide to make a move in this area and what is the likely result?  For a good analysis and prediction regarding the legal action, through the lens of the FCC, please read this article by Lawrence J. Spiwak is the President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies. (http://www.bna.com/fccs-new-municipal-n17179925222/)