Tuesday, May 26, 2015

Affront to Federalism

On February 26, 2015, the same day that the Federal Communications Commission adopted new Internet mandates regulating the practices of Internet service providers, the Commission adopted yet another order constituting administrative agency overreach, this one preempting certain state restrictions on municipal government broadband networks. While this second order generally has received less notice, it is no less important than the "net neutrality" order. For, as my Free State Foundation colleague Seth Cooper and I point out in this new article, published in the Federalist Society's leading publication, Engage, the FCC's preemption order is a legally questionable "affront to federalism.

Immediately below is the brief Introduction and Conclusion to the article, titled, "FCC Preemption of State Restrictions on Government-owned Broadband Networks: An Affront to Federalism. I hope you'll access the complete article here.

I. Introduction and Conclusion

The Federal Communications Commission's February 2015 Order preempting state law restrictions on local government ownership of broadband networks constitutes one of the most significant overreaches in the agency's history-a history which already includes plenty of overreaches. From the standpoint of constitutional federalism, the action is one of the most problematic ever taken by the Commission.

The FCC's claims of preemptive authority to interfere with the exercise of states' discretion over their political subdivisions clash with fundamental principles of constitutional federalism. The Supreme Court's jurisprudence has long recognized that states have broad discretion to delineate the powers local governments may exercise. Because Congress nowhere expressly has granted the FCC such preemptive authority over local government broadband networks, canons of statutory interpretation informed by constitutional principles mean that the FCC's action likely will be struck down in court.

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The FCC's Order preempting state law restrictions on local government ownership of broadband networks is under review by the Sixth Circuit. The Order likely exceeds the agency's statutory authority and violates principles of constitutional federalism. The FCC's asserted authority to interfere with states' autonomy and discretion over the powers of their subdivisions is rather remarkable. A judicial ruling in the Commission's favor would constitute a severe shake-up to the structures of the Constitution's federalist system.