Ars Technica reported this morning that the Department of Justice has declined to defend the FCC in two lawsuits involving municipal-owned broadband networks. Back in February, the FCC adopted an order preempting state laws that attempt to prohibit municipal broadband networks. The states of Tennessee and North Carolina sued the FCC in March, complaining that the FCC does not have authority to preempt states in this area and seeking to nullify the Commission’s order.
These cases, and this development, are interesting on several levels: interesting that the FCC felt emboldened to preempt under Section 706, interesting that the Commission’s original order was supported by the Administration, interesting that two states are challenging the order on grounds that it violates the nondelegation doctrine, principles of statutory interpretation, and federalism, and interesting to see the federal law enforcement agency back away from the cases.
The Ars Technica article quotes former FCC attorney Ronald May on the curious nature of the DOJ’s filing in the cases and the possibility that the Administration is second-guessing the FCC’s interpretation of its own authority:
The decision is “especially curious” because the FCC was following the wishes of President Obama, May wrote. “We don’t know for sure, but my best guess is that the DOJ, quite rightly, is concerned about the lawfulness of the FCC’s preemption action. If so, the concern is justified.”
Stay tuned . . . I’ll continue to track this story.
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