Following the FCC's 3-2 vote last month to pre-empt state laws restricting municipal broadband, Tennessee has filed suit seeking a review of the Commission's ruling. On Friday the state's Attorney General Herbert Slatery filed a petition with the 6th U.S. Circuit Court of Appeals to review the FCC's order, saying, "the FCC has unlawfully inserted itself between the State of Tennessee and the State's own political subdivisions".
In its February ruling the FCC asserted its right to overturn state laws that restrict the expansion of publicly-owned broadband networks. “You can’t say that you’re for broadband and then turn around and endorse limits on who can offer it. You can’t say [you] want to…remove barriers to infrastructure investment but endorse barriers on infrastructure investment,” said FCC chairman Tom Wheeler in support of the ruling. The FCC decision came in response to petitions from EPB, a public utility in Tennessee and the city of Wilson, North Carolina. EPB provides Gigabit broadband at affordable rates to residents and businesses in Chattanooga but is limited by Tennessee law from serving any broadband customers who live beyond its utility footprint.
Because of this restriction, rural and sparsely populated areas neglected by traditional ISP providers like Comcast and Verizon have been stuck with unreliable and slow satellite or 3G cellular service for their Internet connections. The law passed with overwhelming support of the cable, satellite and telcos, under the arguement that local municipalities should not put taxpayer dollars at risk by getting into the captial-intensive broadband business. Critics of the law have argued it does nothing more than protect private companies, which deliver poor service at high prices, from meaningful competition.
After the FCC’s ruling, its opponents have framed the issue as one of states rights. In his court filing Slatery says the FCC's order "is contrary to the United States Constitution" and "in excess of the Commission's authority." The suit by Tennessee was widely expected as is legal action from the state of North Carolina. While the FCC's ruling technically applies on to these two states, its decision creates a framework for municipalities in other states to seek similar relief. Any litigation beyond the US Circuit Court of Appeals would head to the US Supreme Court.
