Sen. Wyden (D-OR) has in the past expressed support for the Community Broadband Act. Image: New America/Flickr

FCC Won’t Appeal Municipal Broadband Defeat to Supreme Court

After court defeat, municipal broadband fight shifts to Congress and the states.

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Aug 29 2016, 6:05pm

Sen. Wyden (D-OR) has in the past expressed support for the Community Broadband Act. Image: New America/Flickr

The Federal Communications Commission will not appeal a recent court decision that kneecapped the agency's power to promote municipal broadband development nationwide, a FCC spokesperson told Motherboard on Monday.

In 2014, the FCC asserted the power to preempt state laws that pose barriers to municipal broadband, but earlier this month, the US Court of Appeals for the Sixth Circuit struck down the agency's authority to do so, in a stinging defeat for community broadband advocates.

"The FCC will not seek further review of the Sixth Circuit's decision on municipal broadband after determining that doing so would not be the best use of Commission resources," agency spokesperson Mark Wigfield said.

That means that the FCC will neither seek a full Sixth Circuit "en banc" hearing, nor appeal the case to the Supreme Court.

The FCC's decision not to pursue further legal review in the case represents a significant victory for cable and phone giants like Comcast, AT&T and Verizon, which for years have been battling local community broadband efforts.

"Sometimes you've got to know when to fold 'em," Harold Feld, senior vice president of DC-based consumer advocacy group Public Knowledge, told Motherboard. "This case was always something of a long-shot, but now it's too much of a long-shot to put money on."

The broadband industry has for years backed efforts in states across the country to push laws that pose barriers to municipal broadband development. The industry often argues that publicly-owned networks would create "non-level playing field," but community broadband advocates say these corporate giants are just trying to protect their monopoly power in many markets.

Read more: Six Ways Big Telecom Tries to Kill Community Broadband

Now that the FCC has chosen not to appeal its defeat, municipal broadband advocates will focus in repealing restrictive state laws, Feld said. "At the end of the day, this is going to be a state-by-state fight," he said.

Democrats in Congress have also introduced legislation called the "Community Broadband Act" that would preempt anti-municipal broadband state laws, but there's virtually no chance such a bill would pass while Republicans control both the House and Senate.

"A lot depends on what happens in the election," Feld said. "If the Republicans come back and say that they're not just the 'party of no,' then this is the kind of thing that could easily pass, because the idea of getting more broadband out to people has traditionally been popular with everyone."

Sometimes you've got to know when to fold 'em.

But, Feld added, such legislation would almost certainly be challenged in court on constitutional grounds, because it would create a tension between federal and state power, and specifically the federal government's power to preempt state laws.

"The Community Broadband Act will raise the 10th Amendment front and center," Feld said.