Laws in North Carolina and Tennessee which prevent cities from competing with private broadband providers by offering municipal service should not be under threat from the FCC, says the National Association of Governors in comments to the Commission.
They do not address the issue of municipal broadband on the merits at all, taking no particular stance.
They do address the issue of state sovereignty. They state that lacking “express authority,” the FCC has no right to supersede any federal, state or local law. It would also run afoul of a memorandum from President Barack Obama issued in 2009 that promised no such action from the federal government absent “full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for pre-emtion.”
Addressing the specifics of the North Carolina and Tennessee situations, NGA wrote, “States as sovereign entities have a significant and material role to play in setting policies for advanced telecommunications services. According to a recent report on municipal broadband networks, states have a strong interest in overseeing the process by which municipal broadband networks are designed and approved because states maintain ultimate responsibility for the financial health of the cities and towns within their borders. Building those networks and maintaining them are expensive, and .those costs raise the risk of financial default by local government, the diversion of resources from other priorities, or other negative outcomes such as credit downgrades.”
NGA continued, “Here, neither the North Carolina nor Tennessee legislative and executive branches enacted laws that prohibited either petitioner municipality from establishing broadband capacity to serve their residents within the city limits. There is a legal distinction between laws that are unconstitutional from those that some factions do not support. The tool to address the latter is the ballot box.”
“NGA believes that the Commission should honor the longstanding partnership between states and the federal government by rejecting the pending petitions and avoid triggering unintended consequences through federal preemption of state authority,” the organization concluded.