If Federal Communications Commission Chairman Tom Wheeler wants to stop states from blocking city-run broadband, he'll likely have to override Republican opposition to do it.
In a speech Wednesday, a top Republican FCC aide argued that the agency lacks the authority to overturn state laws on the issue. More than 20 states, at the behest of cable and telecom industry lobbyists, have restricted the ability of cities to build their own broadband networks.
Matthew Berry, the chief of staff to Republican FCC Commissioner Ajit Pai, argued that cities and towns are just "appendages" of state governments. States are free to restrict local policymaking as they see fit, Berry argued.
He acknowledged that the federal government can preempt state laws, but only through a "clear statement" from Congress. Without that congressional authorization, the FCC can't take action, Berry said.
The Republican aide implied that Wheeler is only contemplating action on the issue as a way to tamp down liberal outrage over his proposal for weaker net-neutrality regulations.
"We do not have the bandwidth to waste on a symbolic, feel-good effort that appears designed to appease a political constituency that is unhappy with where the FCC is headed on other issues," Berry said at a conference of state legislators in Minneapolis. He warned that the FCC will only lose in court if it tries to act against state laws.
In letters to members of Congress, Wheeler has said federal preemption is "not a step to be taken lightly" and that the agency would examine each state law individually.
But he has insisted that he has the authority to overturn the laws, which he argues restrict competition and leave consumers with slower Internet service.
Section 706 of the Telecommunications Act of 1996 gives the FCC the authority to "promote the deployment" of high-speed Internet. State restrictions on local Internet projects may be in violation of that provision, according to Wheeler. The legal question is whether the provision gives the agency "clear" authority to strike down state laws.
The agency is considering petitions from Chattanooga, Tenn., and Wilson, N.C., to overturn state restrictions so they can expand their municipal projects.
Internet providers and many state lawmakers argue that the city-run projects can waste taxpayer money. But Wheeler and congressional Democrats argue the projects can boost economic development by providing high-speed Internet access to local businesses.
The projects are often built in areas without high-speed Internet service from commercial providers.
"I believe that it is in the best interests of consumers and competition that the FCC exercises its power to preempt state laws that ban or restrict competition from community broadband," Wheeler wrote in a June blog post. "Given the opportunity, we will do so."
Berry said he believes the FCC may take action before the end of the year. His boss, Ajit Pai, is one of two Republicans on the five-member commission. Wheeler could override Republican opposition and strike down state laws with the support of the two other commission Democrats.