After fifteen years in an apparent coma, earlier this year the FCC woke up to the fact that ISPs were effectively paying states to pass laws focused entirely on protecting uncompetitive, regional broadband duopolies. More specifically, they’ve been pushing legislation that prohibits towns and cities from improving their own broadband infrastructure — or in some cases partnering with utilities or private companies — even in areas local incumbents refused to upgrade. It’s pure protectionism, and roughly twenty states have passed such ISP-written laws nationwide.
While it received less press attention because it happened on the same day as the net neutrality vote, back in February the FCC voted to start pre-empting some of these state laws because they run contrary to the FCC’s Congressionally-mandated mission of improving broadband access to all (not to mention, common sense). This, not too surprisingly, riled up all of the telecom companies’ paid loyal supporters in Congress, who, like Marsha Blackburn, immediately started whining and pretending this was a states’ rights issue (you’ll note that letting your local incumbent cable and phone company literally write state law is perfectly fine, however).
In March, the state of Tennessee sued the FCC, again framing the state’s decision to cozy up to telecom giants as a states’ rights issue, and claiming the FCC violated federal law and overstepped its authority. Tennessee state law, pushed for by AT&T, has stopped Chattanooga-based EPB from expanding broadband services into additional areas. The FCC’s attempt to thwart this god-given protectionist effort, Tennessee claimed this week in a new court filing, violates Tennesee’s “inviolable right to self-governance”:
“In a brief filed Friday in a federal appeals court, Tennessee argued that states have an “inviolable right to self-governance,” which means that a state may delegate powers to its political subdivisions—i.e. cities and towns—as it sees fit…”Far from being a simple matter of preemption, as the FCC claims, this intervention between the State and its subordinate entities is a manifest infringement on State sovereignty,” Tennessee’s lawyers wrote Friday.
In other words, Tennessee argues, it’s completely within its right to let AT&T write shitty telecom law that ensures Tennessee remains a broadband backwater, and the federal government has no standing to intervene in this noble effort. In contrast, the FCC has argued that Section 706 of the Telecommunications Act of 1996 directs the FCC to take action to remove barriers to broadband investment, which is precisely what AT&T Tennessee’s law is. Tennessee’s motivation here is to ensure they can keep gobbling up AT&T and Comcast campaign contributions without federal interference. The FCC’s motivation here (contrary to years’ past), is to actually bring better, cheaper broadband to more people.
The courts could rule either way, but the FCC will get its chance to respond to Tennessee in a filing expected by November 5. Meanwhile, Tennessee residents can rest easy knowing their taxpayer dollars are not only being used to prop up AT&T’s crappy, stagnant broadband empire — but to thwart efforts to actually bring broadband competition and lower…