Thought Piece by Stephen Heins
[The herd of elephants in the FCC’s Boardroom is the rapid convergence of energy, technology and broadband (aka The Internet of Things). However, the IOT will require Big Data, Big Infrastructure, Big Technology and Really Big Broadband. Too little of which the US has today in this over-regulated climate.
That said, the current FCC can’t stop itself from micro-managing, even if it means writing new law, new interpretations of current law or invocation of old law. For example, this means that it is willing to invoke the Telecommunication Act for the 1930’s to control set top boxes. All of these current FCC initiatives harken to the past, which proves my point that Federal Agencies (who by definition are at least 5 years behind the industry it is designed to regulate) should never be activists or overly intrusive.
With a modest amount of fair play regulation, the private sector will continue to provide all kinds of advanced efficiencies (including energy), economic development and societal benefits. As usual, innovation is decades ahead of the history books and much different from any prediction by futurist and far in advance of any regulator. Steve]
Wall Street Journal Editorial: “The FCC Gets Throttled”
The Sixth Circuit shuts down a power play over municipal broadband.
Aug. 10, 2016 7:39 p.m. ET
While the Obama Administration is speeding up its rule by fiat, the judiciary is sometimes standing up to it. On Wednesday the Sixth Circuit Court of Appeals throttled the Federal Communications Commission’s attempt to pre-empt state laws regulating municipal broadband.
Last year the FCC overruled state laws in North Carolina and Tennessee that restricted municipal broadband networks in Wilson and Chattanooga from expanding to neighboring jurisdictions. About 20 states impose limits on municipal broadband, not least because public utilities can discourage private competition and cost taxpayers a bundle.
The Supreme Court in Nixon v. Missouri Municipal League (2004) rejected federal pre-emption of a state ban on municipal telecom services, so FCC Chairman Tom Wheeler tried an end run. The agency claimed authority under Section 706 of the 1996 Telecommunications Act, which instructs the commission and states to “encourage the deployment” of advanced telecommunications and to “promote competition in the local telecommunications market.”
Tennessee and North Carolina sued the agency for impinging on states’ sovereign authority to regulate municipalities, which is enshrined by the Tenth Amendment. According to longstanding judicial precedent, Congress must clearly articulate its intent to interpose itself between a state and its political subdivisions.
The FCC sought to distinguish the municipal broadband cases from Nixon by noting that the Supreme Court had then been upholding rather than reversing an FCC order. Yet as Judge John Rogers notes in the decision for the three-judge panel, “the distinction only makes a difference if we are required to apply Chevron CVX 1.47 % deference to the agency ruling in this case.”
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- Judge John Rogers found that Section 706 does “not authorize the preemption attempted by the FCC,” so the court did not need to defer to the agency’s false interpretation. In other words, the feds can’t simply claim a law says something the law doesn’t say and then demand that courts defer. Judge Rogers concludes that the “FCC order essentially serves to re-allocate decision-making power between the states and their municipalities.” Not even the Obama Administration can get away with breaking the law every time.
