DOJ Stays Out of Muni Broadband Fight

On November 5, the Department of Justice, without further explanation, informed the Sixth Circuit Court of Appeals that "the Respondent United States of America takes no position" in the appeal of the FCC's order preempting state laws restricting municipal broadband networks.

This is curious.

In fact, here is a statement I gave to the press:

"The Department of Justice's curt statement advising the court that it takes no position in the appeal of the FCC's preemption of state laws restricting local government broadband networks is very curious. As someone who served as FCC Associate General Counsel, I can tell you this is a very rare occurrence. And it is especially curious in this case because President Obama urged the FCC to do exactly what FCC Chairman Tom Wheeler then did. We don't know for sure, but my best guess is that the DOJ, quite rightly, is concerned about the lawfulness of the FCC's preemption action. If so, the concern is justified."