back to article Judges put FCC back in its box: No, you can't override state laws, not even for city broadband

A US circuit court has torpedoed the FCC and its efforts to champion city-owned broadband networks. The Sixth Circuit Court of Appeals said on Wednesday [PDF] that the American regulator lacks the authority to overrule state laws that prevent cities from operating their own ISPs. Last year, the watchdog declared it was unfair …

  1. Beachrider

    Reg said that States cannot be pushed around by a federal regulator...

    Hmmm, misses the point of the ruling by a LOT. This court felt that enabling municipal ISP ownership was outside the FCC's charter. Rulings that force states to adhere to frequency and power settings have NEVER been deemed to be outside the FCC's domain.

    1. Youngone Silver badge

      Re: Reg said that States cannot be pushed around by a federal regulator...

      It looks to me that the FCC is trying to be a proper regulator.

      The Feds gave the ISP's regional monopolies and huge subsidies to built the infrastructure, but in many cases they did not do what they promised to do.

      So, various cities decided to build their own, only to face State legislators bought by the ISP's preventing them from providing a service.

      I guess the FCC has overstepped it's authority here, but someone needs to rein in Comcast et al.

      1. tom dial Silver badge

        Re: Reg said that States cannot be pushed around by a federal regulator...

        I think the assertion that the "Feds gave the ISP's regional monopolies and huge subsidies to build the infractructure" is essentially incorrect and should be backed up with pointers to relevant sources. Most or all of the franchises, which in practice often became local monopolies or oligopolies, were granted by local governments, initially for delivery of cable TV. To the extent they now provide communication services they usually are regulated by state utility commissions. In fact, the cable companies became the superior competition for the telephone company monopoly, as those of us who started with 300 baud acoustic modems will remember, and as far as I know did it without significant public subsidies in densely populated areas.

        1. Beachrider

          Re: Reg said that States cannot be pushed around by a federal regulator...

          this is about direct-to-consumer Wi-Fi. There were spectrum sales (by the FCC, never by towns or states) with commitments to downstream public services, like WiFi. The FCC can revoke the spectrum awards. It happens ever year, for some. As to wired communications, that is a mix of private/regional/state/federal authorization. Almost nobody owns all the property that their wires traverse. Those right-of-ways can be revoked in many ways.

          1. Fatman

            Re: Reg said that States cannot be pushed around by a federal regulator...

            <quote>As to wired communications, that is a mix of private/regional/state/federal authorization. Almost nobody owns all the property that their wires traverse. Those right-of-ways can be revoked in many ways.</quote>

            Which is why there are regional monopolies/oligopolies - that is called franchise rights.

            Local governments (be they state, county or municipal) gave many 'cable companies' exclusive or virtually exclusive franchise rights in exchange for the investment in building out the systems. The point the lobbyists made was that investment will not be made if there is little potential for return on that investment. Often, the 'virtually exclusive' component was achieved by allowing an incumbent telco to offer cable TV service. Thus leading to a duopoly. And, in markets with such duopolies, competition often was a case of one never seriously undercutting the other, price increases often in lock step.

            There are some core services for which the duplication of investment needed in order to provide a service is ridiculous. Can you imagine duplicate sets of roads, with drivers of Ford manufactured vehicles restricted from accessing 'Chevy' or 'Dodge' roads? Can you imagine the clusterfuck that would result if you had multiple sets of sanitary sewers going down a street? Or water lines?? Or electric lines??? Or telephone lines????

            In the late 19th and early 20th centuries, the skylines of large cities were a rats nest of wires and cables; not unlike some I have seen of what can be found in India. Local officials determined that duplication of investment is a waste of investment, and thus the concept of a regulated monopoly was born. To some extent that needs to be extended down to the provision of wired communications services.

            It will be necessary to separate the internet, video and voice services provider from the communication services provider (i.e. separate the 'service' from the infrastructure providing the service). It is time that provisions of the Communications Act of 1996 that forced incumbent telco operators (ILECs) to open up their wired networks to competitors (CLECs) be applied to the provision of cable and fiber optic communications services. Telcos made a lot of promises while that bill was going through Congress; most of them are still not fulfilled. One of the more shitty aspects of that bill was that "opening up to competition" was applied to wired copper networks only, fiber and cable networks were exempt. ISPs had 20 years to recoup those investments, so what excuse are they going to pull out of their asses this time.

            1. Beachrider

              It isn't simply 1996, anymore...

              Ownership of the telco or cable franchise is VERY different now than it was in 1996. The telco/cable poles are on city property. My company was successful in getting right-of-way to run scores of fibers over miles of poles, without paying cable or telco. Long distance fiber providers are competing with the entrenched monopolies and winning their share of the business. One city has strung up a few hundred hotspots for city-wifi. The cable provider has 100,000+ hotspots over a four state area. When I do venture into NYC, people are using their handhelds for many video servic s, even in the subway. Making noncompetitive monopolies obsolete is happening.

          2. tom dial Silver badge

            Re: Reg said that States cannot be pushed around by a federal regulator...

            "This is about direct-to-consumer Wi-Fi." That does not seem to be true. The court decision contains only one reference to Wi-Fi, that the city of Wilson, NC "provides free Wi-Fi to its entire downtown area" in addition to the fiber optic Greenlight infrastructure that neighboring areas wanted it to extend, forming the basis for the issue at hand. That issue, reduced to the minimum, was whether or not the FCC, absent a clear statement in statutory law, had the authority to override Tennessee and North Carolina state laws in the case at hand. The court said that it does not, and issued a decision that the FCC order must be reversed.

            1. Beachrider

              Re: Reg said that States cannot be pushed around by a federal regulator...

              @Dial, these municipal ISPs are solely about public WiFi. They are NOT about wired broadband, to the public.

      2. Alan Brown Silver badge

        Re: Reg said that States cannot be pushed around by a federal regulator...

        "The Feds gave the ISP's regional monopolies and huge subsidies to built the infrastructure, but in many cases they did not do what they promised to do."

        You mean individual states. The telcos were granted mergers and legislated local monopolies in exchange for promised work that never got done (Although the PUC commissioners seem to have sone very well out of it) - the final result is that AT&T has been reassembled without that pesky "universal service" committment from its 1930s antitrust settlements AND is in 2 pieces so that the feds can't replay that antitrust action.

        http://www.pbs.org/cringely/pulpit/2007/pulpit_20070810_002683.html

    2. diodesign (Written by Reg staff) Silver badge

      Re: Beachrider

      "Reg said that States cannot be pushed around by a federal regulator..."

      No, that's what the appeals court said, in this specific case, not us.

      C.

      1. Beachrider

        Re: Beachrider

        It is clearly NOT what they said. Read the text. It IS how the Reg bumper-stickered it. Change enough words from a true statement and you can make it into a false one.

        1. the spectacularly refined chap

          Re: Beachrider

          The Reg put this in the correct context, and made no mention of any technical parameters over frequencies, radiated power or anything else. It was you that misleadingly introduced those. Presumably after having read no further than the headline.

          1. Beachrider

            Re: Beachrider

            What color is the sky in your world? The judge decided what I said, NOT the broad thing that the Reg said. That the FCC lacks the authority to enable municipal ISP services when state law prohibits them. The Reg decided to make it a larger victory of states' right over federal restrictions. It isn't. I gave the counter example of FCC always winning on most of its rulings, so long as it is ruling within its domain (frequency, power, ICC right-of-way, etc.).

            1. Beachrider

              Re: Beachrider

              Read my first entry in this stream. It is DIRECTLY from the inside of the article.

  2. bombastic bob Silver badge
    Megaphone

    limited powers

    seems that 'limited powers' to federal agencies might still be in place, regardless of recent attempts to 'federalize' everything via "executive orders". Yeah, that 'Constitution' thing limiting Federal power again. It's about time SOMEONE paid attention to that...

    1. Beachrider

      So, only the constitution is valid?

      People talk like that in Cali, all the time. THEY have OVER 500 AMENDMENTS to their constitution. It is a hideous interpretive farce. Others that go for the basic constitution are fomenting a return to slavery and property's-owner ONLY voting (don't even think of women voting, in any case).. I don't get why this would be attractive...

      1. tom dial Silver badge

        Re: So, only the constitution is valid?

        Many state constitutions are rubbish. This is especially true, I suspect, in states like California where they can be amended with relative ease by ballot initiative. Compared with these, the US Constitution, with fewer than 4,400 words to describe the basic structure and functions of the government and the authority of the main parts, is an elegantly concise work of art.

        As an aside, the original US Constitution made no explicit mention of slavery. The closest things to that were Article I, Section II, paragraph 3, the three fifths rule that allocated representatives based partly on "all other Persons," a category comprised of slaves; Article I, Section IX, paragraph 1, prohibiting Congressional action to end the slave trade before 1808, and Article IV, Section II, paragraph 3, requiring a "Person held to Service or Labour in one State, under the Laws thereof, escaping into another" to "be delivered up on Claim of the Party to whom such Service or Labour may be due," a clear, although implicit, reference to slaves. Looking back, one may consider these compromises contemptible, but the existence of the Union arguably depended on them.

        On the other hand, the original Constitution said exactly nothing about the qualifications of electors, that being left to the states, and nothing about the qualifications for federal elective office beyond age, citizenship, time of residence in the US (president and vice-president) or state from which elected (senators and representatives). Women and black persons (who were property owners) were electors in the state of New Jersey from 1776 until 1807 and therefore eligible for election to the US House of Representatives. It would have been unconventional to elect a woman (or black) to office, perhaps to the point of being unthinkable, but the US Constitution did not prohibit it.

        1. Beachrider

          Re: So, only the constitution is valid?

          @Dial, the Constitution enabled slavery. It did not allow women to vote in elections (statements about their eligibility to serve as electors and representatives miss this key point). Remember that the first 10 amendment showed that other foundational requirements were not met with the original Constitution.

  3. Anonymous Coward
    Anonymous Coward

    How much ...

    ... did that ruling cost the entrenched monopolist ISPs? In fact it has cost them twice, first to get the state law passed and now to 'sweeten' the federal court.

    1. Beachrider

      Re: How much ...

      But now those providers face loss of their spectrum and right-of-way allocations. This is just raising the stakes and assuring their eventual confrontation at THOSE levels. They should have taken their medicine before challenging this...

  4. Frank Zuiderduin

    A regulator that can't regulate because of local laws? Sorry, but that's just nuts.

    1. a_yank_lurker

      "A regulator that can't regulate because of local laws? Sorry, but that's just nuts." - The case hinges on whether the local laws are limiting or interfering with interstate commerce. If not, then it is not a feral issue and the court is correct.

      1. Trevor_Pott Gold badge

        If your internet connection is made out of butts covered butts in butts sauce and/or costs too much to actually use then it is interfering with all sorts of interstate - and international - commerce.

        Buying things online is one o the top activities people possessed of not butts internet connectivity do with the thing.

      2. Strahd Ivarius Silver badge

        The FTC is regulating interstate commerce...

        In this case, it hinges on whether the promise to set up broadband access by an ISP is enough to prevent municipal networks to expand into areas outside their proper limits.

  5. Pirate Dave Silver badge
    Pirate

    Who to cheer for?

    Decisions, decisions. It's good that the FCC is trying to lower the boom on the monopolies enjoyed by the ISPs and let municipalities serve their people. But then, it's also good that a judge is limiting the power of a federal agency in relation to a State's laws.

    I don't know who I'm cheering for more in this...

    1. Myvekk

      Re: Who to cheer for?

      True. This one is a lose / lose for the residents. They just want better internet & the council is trying to provide what the companies won't.

      Yay! The courts upheld the law against the faceless bureaucrats trying to push through what they want! (Probably more than half the reason that Britan voted to leave the EU. Many of them were sick of bureaucrats in Brussels deciding what their laws had to be.)

      Boo! The bureaucrats, this time, were trying to do the right thing by the people...

      1. Pascal Monett Silver badge

        Re: The bureaucrats, this time, were trying to do the right thing

        Just like the EU in every single occasion where UK government tried to enforce spy laws and weaken privacy, eh ?

        1. Beachrider

          Re: The bureaucrats, this time, were trying to do the right thing

          The UK has certainly made it a priority to solve THAT issue... Baby/bathwater

  6. Anonymous Coward
    Anonymous Coward

    sigh local vs state vs federal is usually partisan

    At least here in my red state the very partisan state legislature has lately passed laws to prevent counties and municipalities in the state from enacting any non approved non red state like laws locally. And at the same time they are more than happy to also pass unconstitutional laws saying the state owns all the federal land in the state or the state can ignore executive orders both of which are simply political gestures that will fall down immediately in court.

  7. Jeffrey Nonken

    "Funnily enough, US regulator can't just do whatever it wants”

    ... But Comcast and AT&T are allowed to wrote their monopolies into state law, preventing municipalities from providing alternatives even when the former ignore contracts requiring them to provide service.

    Funnily enough, the court didn't bother to mention that part.

  8. Anonymous Coward
    Anonymous Coward

    The view from North Carolina

    In a rare move siding with the actual citizens they're meant to serve, the FCC ruled that the corrupt NC legislature had no right to prevent local communities from providing their people with what has become an essential public service that our regional commercial telecommunications duopoly didn't bother to compete for. Wilson is a long way from the major cities in the state and doomed to become a broadband desert if the community didn't act. The establishment and expansion of public broadband services like Greenlight in the face of corporate indifference and greed is all about the freedom to invest in our own economic future. The FCC understood that. Hopefully the US Supreme court will overturn the appeals court and restore that freedom to the citizens of Wilson and the rest of NC.

    1. Peter2 Silver badge

      Re: The view from the UK

      As a Brit, doesn't the court ruling just say that a government can't run an ISP and compete with a private business from taxpayers money?

      Can't you just apologise profusely to the court and transfer all of the (working?) assets into a Cooperative so it's nominally independant and then do a door to door leafleting exercise explaining the situation and that your local ISP can continue to run for $amount per year and asking for people interested in subscribing? Split the cost between the number of members, and job done.

      Or bill the town council for internet access to their offices (and home working staff...) for $runningcosts? Even if this is wildly inefficient for the stated purpose, I don't think there is any avenue to prevent government from being wildly inefficient and wasting taxpayers money.

      Either way, ruling complied with, and ISP retained with i's dotted and t's crossed. Life carries on as before. If you want to then expand, money could be raised via public subscription (ie crowdsourcing, kickstarter et al) and a leaflet drop to ensure interest.

      1. fnj

        Re: The view from the UK

        @Peter2:

        As a Brit, doesn't the court ruling just say that a government can't run an ISP and compete with a private business from taxpayers money?

        No, it doesn't say that. A government can run any kind of business it wants, and compete with any private businesses it wants to. It would be a strange world indeed if it couldn't. But the question of whether it actually chooses to do this, is a political matter.

        The ruling is, dead simply, about states' rights. All matters which the federal government is not granted by the US Constitution the specific power to deal with, are reserved to the individual states and their respective constitutions, as they see fit. If a state wants to tie the hands of its own municipalities, that is the state's business and not the feds'.

        1. Beachrider

          Re: The view from the UK

          @frj, for the USA, this one, they aren't declaring state supremecy. They are advising that a general ruling by the FCC goes beyond the FCC's charter. The FCC can still force a break in the logjam, they will just need to use a bigger hammer and o get on-the-street wifi available label with reluctant providers. New competition for frequency awards and federal rights-of-way will just be used, while the consumers wait...

  9. Anonymous Coward
    Anonymous Coward

    Writing as a Non-American, a situation like this where local communities are prevented from doing something as harmless and basic as hooking up their own Internet makes it sound like the USA is properly fucked up in a fundamentally important way.

    And if the Courts can't see that, aren't they failing in their duty somehow? If the Courts can't see that the sum total of law is an ass in a simple situation like this, then who else can forcibly fix things? Anyone?The way the political machine works in the US means that the politicians often cannot.

    Sounds like there's a need for something like a Monarchy once more to bash dumb heads together until they see sense.

    1. Beachrider

      To the anonymous non-American...

      The FCC tried to engender compliance with promises made when spectrum, etc. was awarded. Dozens of towns do this local-WiFi-ISP thing, across the nation. Somehow, this state has a law to prevent it. The court is just telling the FCC to use its BIG hammer, if it needs to get ISP service for this population. Lawyers are getting rich and consumers are being denied access. The FCC uses its big hammer SOMEWHERE every year.

    2. fnj

      @AC:

      Writing as a Non-American, a situation like this where local communities are prevented from doing something as harmless and basic as hooking up their own Internet makes it sound like the USA is properly fucked up in a fundamentally important way.

      Yes; that is certainly how a great many of us USians see it, too. But it is a political fuck up, not a legal one.

      And if the Courts can't see that, aren't they failing in their duty somehow?

      The various levels of government, and the courts, are (thank goodness) constitutionally constrained in their powers. The feds are granted only certain specific powers by the US Constitution. Everything else devolves to the states. If a state wants to tie the hands of its own municipalities, and if that state's own constitution empowers it to do so, then as long as the people's rights as specifically guaranteed by the US Constitution are not infringed, that is none of the feds' business.

      1. bazza Silver badge

        Fnj,

        The various levels of government, and the courts, are (thank goodness) constitutionally constrained in their powers

        Well isn't that part of the problem? If the legal / political machine as a whole is playing silly buggers there's no one who can oblige them to stop it and sort themselves out?

        A few years ago I read an article by a retiring constitutional lawyer. The tone of it was along the lines of how America needs something like a monarch or a president in the European style. Basically every other country on the planet has someone whose only real power is to dismiss the government and all the politicians and tell / let the electorate choose some new ones.

        Mixing that up with a federation of states is messy, though many other countries don't have this sovereign-state-within-a-federation thing that the US has...

        In my lifetime the Queen (well, her governors) have intervened twice, once in Australia and more recently in Canada. In Australia a general election was forcibly called, and in Canada an election was denied. In both cases this successfully resolved a budget deadlock, to the benefit of both. The USA, as things stand, can't do that and this has been to the significant detriment of the country in recent times.

        It's never come to that here in the UK, where the Parliament Act basically means we have 5 year dictatorships (so no problems getting things done), but nobody feels that that is undemocratic. The thing that reigns it in is the knowledge that they can pretty well get sacked at any time if the Queen thinks it necessary.

  10. frank ly

    what is "government"?

    "... these projects run up against state laws that prohibit governments from competing with private businesses."

    Does the law actually say "government" or does it say "any form of legislative power" or similar expression? Is the law written in such a way that a remote town council counts as 'government'?

  11. Slx

    Amazing that states are actually working against the interests of their own citizens.

    They've only got themselves to blame though. The electorate in those states clearly isn't asking the right questions.

    1. Anonymous Coward
      Anonymous Coward

      "Amazing that states are actually working against the interests of their own citizens."

      At any time every government is working against the interests of at least some of its citizens. The important questions are which citizens, and why.

  12. earl grey
    Unhappy

    Yeay, big biz for the win!

    er....

  13. Bucky 2

    Not as dramatic as it seems

    All that really happened here is that a particular government agency with very specific powers was called upon to do something, and that something didn't actually match what they have the power to do.

    Like calling the DMV because your car caught on fire. Bless the DMV for trying to help, but really, you need the fire department.

  14. Howard Hanek
    Windows

    Jackboots

    Our Federal Jackboots are there to 'service you' 24/7.

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