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September 4, 2014

Dear FCC: The Power to Regulate State Affairs Belongs to the State


Recently the Federal Communications Commission (FCC) sought comments as to whether it should follow the pleas of the Electric Power Board of Chattanooga, Tennessee, and the City of Wilson, North Carolina, and act to preempt portions of Tennessee and North Carolina state statutes regarding the municipal provision of broadband services. Both entities complained that their state laws constrain their ability to provide city-owned broadband, and so were asking the federal government, via the FCC, to preempt state law.   
However, states have the power to limit and regulate municipal entry into broadband provision, and their concerns are just and legitimate. Moreover, it is a violation of the federalist structure of the U.S. Constitution for the FCC to attempt to indenture the states into the FCC’s scheme to expand municipal broadband. The federal government, which was created by the states, cannot empower municipalities, also creations of the state, to usurp state authority. (See IPI’s comments filed with the FCC.)
No constitutional provision can anticipate or foresee every emergency, crisis, power conflict or advance of technology. But the Tenth Amendment lays down a principle in general terms: namely, that states could follow their best judgment in matters the Constitution had neither delegated to the national government nor prohibited the states from undertaking. Although the Constitution prohibits the states from declaring war or coining money, they were left a considerable scope for state activity such as building and operating their own infrastructure, regulating their own affairs and imposing their own taxes for their own purposes.
Their legislatures were in no sense puppets of Congress. State lawmakers could meet whenever they wanted for as long as they wanted, and address issues peculiar to the needs of those who had chosen them. No national “permission” was needed; the Tenth Amendment constituted permission, because the amendment asserts that those powers not delegated to the federal government don’t belong to it. That power belongs to the states or the people.
The Tenth Amendment creates a balance of power between the states and the federal government, which is what is meant by “federalism.” As Supreme Court Justice Antonin Scalia wrote in Printz v. New York, “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Simply stated, states are imbued with the power to regulate their internal matters, including that of whether the state will allow municipalities to build broadband systems subjecting all citizens of the state to the risk of failure. Take note FCC: The power to regulate state affairs belongs to the state.


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