FCC's Expected Grant of Muni Broadband Pre-Emption Petitions Seen Likely to Spawn Further Petitions
The FCC’s expected approval Thursday of petitions seeking pre-emption of anti-municipal broadband laws in North Carolina and Tennessee is likely to unleash a spate of additional pre-emption petitions from other municipalities seeking to build or expand networks, said Michael Santorelli,…
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director of the Advanced Communications Law and Policy Institute at New York Law School, during a webinar Wednesday. Multiple petitions “have probably already been drafted” by municipalities that are waiting for the FCC to vote on the existing petitions, Santorelli said during the Digital Policy Institute event. The FCC has made clear that its draft order applies only to the specific petitions from the Electric Power Board of Chattanooga and the city of Wilson, North Carolina, but it's likely to set a precedent for future petitions, he said. The FCC’s draft pre-emption order stands on very shaky legal ground and contains logic that also would allow state public utility regulators to pre-empt laws created by their own state legislatures, said Phoenix Center President Lawrence Spiwak. The order is nearly certain to face challenges in federal courts and the Supreme Court, which could send the commission’s entire legal view of its Telecom Act Section 706 authority “crashing down,” he said. FCC pre-emption can sometimes be legally justifiable, particularly if it clears barriers to private sector entry into state markets, Spiwak said.