Tennessee and North Carolina Fight the FCC’s Order Preempting State Laws Limiting Municipal Broadband

As we discussed in detail here and here, on February 26, 2015, the FCC voted to strike down provisions of North Carolina and Tennessee laws that allow municipalities to provide broadband service but otherwise limit the geographic area they may serve and impose other conditions on their operations. The full text of the FCC’s order was released on March 12, 2015.

On March 20, 2015 the State of Tennessee filed a Petition for Review with the 6th Circuit Court of Appeals challenging the FCC’s order. On May 11, 2015, North Carolina followed suit, filing its own petition with the 4th Circuit Court of Appeals challenging the FCC’s order. Each Petition claims that the FCC has “unlawfully inserted itself between the State and the State’s political subdivisions,” and asserts that the order is contrary to the U.S. Constitution, is in excess of the FCC’s authority, and as is usual in petitions seeking review and reversal of administrative orders, is arbitrary, capricious, and an abuse of discretion under the Administrative Procedure Act.

On May 19, 2015, the 4th Circuit granted the FCC’s unopposed motion to transfer North Carolina’s Petition to the 6th Circuit. It is expected that the two cases, now in the 6th Circuit, will be consolidated.

To date, four parties have moved to intervene in the 6th Circuit. The National Association of Regulatory Utility Commissioners has moved to intervene in the 6th Circuit case on behalf of the State of Tennessee. The Independent Telephone & Telecommunications Alliance has moved to intervene in the 6th Circuit on behalf of the State of North Carolina. On the other hand, the two original petitioners in the proceeding that resulted in the challenged order, the Electric Power Board of Chattanooga and the City of Wilson, North Carolina, have moved to intervene in support of the FCC and for upholding the order.

Typically, the FCC has 40 days from the date of service to file the administrative record. The 6th Circuit has not yet issued a scheduling order for briefs in either case.