Correspondence to the FCC re: preemption of local government as a source of regulation

Thu Jul 24 22:28:02 UTC 2014

On Thu, Jul 24, 2014 at 6:10 PM, Jay Ashworth <jra at baylink.com> wrote:
> For the record, Eric, I'm certain that states can preempt municipalities.

Howdy,

Actually, it usually stands on its head: states determine the scope of
what local governments are -permitted- and required to do rather than
what they're forbidden.

Traditionally, sanctioning the local cable TV company has been one of
the activities the states assign to individual localities while
sanctioning the local telephone company has been kept up at the state
corporation commission or public utilities commission.

With the convergence of cable TV and telephone into Internet, it's
anybody's guess which regulation goes where. Everybody wants the
power. Nobody wants the responsibility.

> The question is can FCC preempt States?

Generally yes, as long as there is some aspect of the activity that
moves it into the realm of interstate commerce. The FCC would have
trouble preempting the states on a pure layer-1 fiber build but it is
within the federal government's authority to preempt state regulation
on general Internet access and any infrastructure not meticulously
separated from the same.

For example, the FCC preempts all state and local regulation of
sub-meter satellite dishes on the grounds that satellite
communications is fundamentally interstate in nature. They even
preempt homeowners' association rules.

There's also the question of whether the FCC already has the authority
or if they'd need an act of congress to get it. On that question, I
have no idea.

Regards,
Bill Herrin

-- 
William Herrin ................ herrin at dirtside.com  bill at herrin.us
Owner, Dirtside Systems ......... Web: <http://www.dirtside.com/>
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