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.
* * *
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.