Tennessee is suing the FCC for letting city-run Internet move forward

Conservatives aren't giving the FCC an inch.


Eric Geller


Published Mar 24, 2015   Updated May 29, 2021, 5:57 am CDT

In an attempt to restore its ability to restrict city-run Internet service, Tennessee is suing the Federal Communications Commission.

The FCC voted on Feb. 26 to invalidate laws in Tennessee and North Carolina that prohibited cities with municipal broadband networks from expanding the service outside their city limits.

The agency argued that Section 706 of the Telecommunications Act of 996 gave it the authority to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans … [by promoting] competition … [and removing] barriers to infrastructure investment.”

Restrictions on city-run Internet, the FCC said, stymied competition, deployment, and service improvement, and were thus subject to “preemption,” or nullification, by the federal regulator.

On Friday, Tennessee asked the U.S. Court of Appeals for the Sixth Circuit to reverse the FCC’s decision. The state’s petition accused the agency of “unlawfully insert[ing] itself between the State of Tennessee and the State’s own political subdivisions.”

Tennessee’s lawyers called the FCC’s invalidation of the state’s municipal broadband restrictions “arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act.”

The APA is a 1946 law that established the federal regulatory process. It lays out how agencies like the FCC must propose, accept comments on, discuss, and finally enact rules. It also establishes the process by which federal courts can review those rules.

At the FCC’s February open meeting—during which the agency also voted on strong net neutrality rules—Chairman Tom Wheeler had harsh words for officials in Tennessee and North Carolina who were fighting municipal broadband plans tooth and nail.

“You can’t say you’re for competition but deny local elected officials the right to offer competitive choices,” Wheeler said during the committee’s pre-vote discussion of the issue. “As they say in North Carolina, ‘that dog won’t hunt.’”

AT&T and other major Internet service providers have lobbied heavily to prevent the kind of expansion that Tennessee and North Carolina had banned. Nonetheless, state legislators in both the Tennessee House and Senate have introduced bills to clear away the restrictions and let cities offer government-run Internet in neighboring jurisdictions.

The congresswoman serving Tennessee’s 7th district, Rep. Marsha Blackburn (R-Tenn.), is the fiercest opponent of municipal broadband in Congress.

Blackburn, who received $81,000 from the telecom industry in the 2014 election cycle, has co-sponsored legislation that would overturn the FCC’s decision to let such broadband networks proceed with their expansion plans. She called the agency’s ruling “a troubling power grab.”

Photo via Ed Kohler/Wikimedia Commons (CC BY 2.0)

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*First Published: Mar 24, 2015, 1:55 pm CDT