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FCC Considering Regulating Municipal Broadband Network Projects

On June 10, Federal Communications Commission (FCC) Chairman Tom Wheeler issued a blog post encouraging consumer advocacy groups and individuals to file comments on whether or not a Tennessee state law prohibiting municipalities from investing in broadband network projects actually hinders competition and hurts economic growth in their communities. The blog post may be a signal that the agency intends to issue regulations that would allow municipalities to invest in the broadband development projects regardless of any current or future state or local laws to the contrary.

While several other states also have similar laws, Chairman Wheeler specifically cited a case in Chattanooga, Tennessee, where the city developed a municipal broadband network that reaches some residents’ homes. The state, however, now has a law in place that prohibits the city from expanding the network to more people.

A FCC regulation could preempt Tennessee’s law and any similar state or local laws or ordinances aimed at hindering public broadband development projects. The possibility of such FCC regulation is already stimulating opposition, however. Eleven GOP Senators sent a letter to the chairman claiming the move would overstep the agency’s authority by superseding state laws. The FCC is likely to use Section 706 of the Telecommunications Act, which states the agency has the authority to promote the deployment of broadband, as a legal basis for the regulation. Any existing state laws would then be considered in violation of this provision.

Several critics of the regulation have come forward. Arguing the federal government should not try to preempt state decisions, eleven GOP Senators sent a letter to the chairman claiming the move would overstep the agency’s authority by superseding state laws. The National Conference of State Legislatures has already threatened to sue the commission claiming the regulation would violate the constitution and infringes upon states’ rights. While no regulation or language has actually been released, this issue may be a concern for colleges and universities interested or already participating in municipal broadband development efforts. EDUCAUSE will continue to watch for further developments and their implications for higher education institutions.