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Today, the Federal Communications Commission voted to approve a Third Report and Order to enforce cable franchising laws by preempting state and local authorities. Public Knowledge finds the FCC’s move to prevent states from regulating broadband -- a service the agency refuses to regulate itself -- both baffling as policy and defective as a matter of law.
The following can be attributed to John Bergmayer, Legal Director at Public Knowledge:
“The Commission is attempting to use its limited statutory authority to preempt state and local regulation of cable television franchise agreements to broadly preempt state and local regulation of other services, such as broadband access. While this is consistent with the Commission's current perplexing view that it has no statutory authority over broadband but can nevertheless preempt states and local authorities from exercising their own authority, its view is nonetheless mistaken legally and is bad policy.
“The FCC’s effort to dramatically expand its power at the expense of traditional state and local government prerogatives contradicts numerous federal and state courts that have read the statute and found it contains no such broad preemption authority. It also contradicts several decisions decided by the Supreme Court last term, notably Virginia Uranium, Inc. v. Warren (federal jurisdiction does not extend beyond bounds of comprehensive federal statute to intrude on related state authority) and Kisor v. Wilkie (statutory interpretation that fails to identify genuine ambiguity deserves no deference).
“In this case the Commission has decided to pursue a theory that an obscure provision of Title VI of the Communications Act gives it broad powers to substitute its views for those of local governments that are closer to the people they serve. We're confident that this unreasonable exercise in statutory gymnastics will eventually be rejected.
“Aside from preemption, the rest of the rule changes in this item would drain local budgets, further undermine local authority, and could lead to the reduction of PEG channels, which remain important sources of information and are often the best way for local governments, particularly in smaller communities, to get information to their residents.”