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August 10, 2016

Court Slaps Down FCC Preemption of States' Muni Broadband Laws

  Institute for Policy Innovation

DALLAS – The Sixth Circuit Court’s rejection of the Federal Communications Commission’s (FCC) unconstitutional preemption of state laws regulating municipal broadband projects is a win for constitutional federalism and taxpayers.

“Of course it’s totally unconstitutional for a federal regulatory body to assert the right to overturn duly passed state legislation,” said Institute for Policy Innovation (IPI) president Tom Giovanetti. “But we can’t take adherence to separation of powers for granted anymore, which is why it’s a delight when courts do the right thing and defend clear constitutional limits on the federal government.”

“In recent years exceeding its authority and undertaking costly litigation with taxpayer dollars seems to be a core competency of the Commission,” said Giovanetti. “It has been ironic to see the federal government, awash in debt, attempting to undo prudent state-level taxpayer protections, given that the states usually do a far better job of balancing their budgets and looking after taxpayer interests.”

“There are ways to encourage greater broadband deployment in unserved or underserved areas that don’t violate the Constitution and don’t harm taxpayers,” said Giovanetti. “We’re particularly fond of our Broadband Enterprise Zones proposal, but there are other ways, and the FCC has a role in all of them. But when the FCC exceeds its authority, it’s appropriate for the courts to deliver a smackdown, and the Sixth Circuit delivered it.”

“The history of municipal network projects is a history rich in municipal hubris, naiveté, debt, bankruptcy and failure, and the states’ concerns in this area are legitimate,” said Giovanetti. “It’s appropriate the courts today have slapped down the FCC’s ill-conceived overreach.”



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