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

Fri Jul 25 00:28:18 UTC 2014

The question posed is whether or not a state can control where a local 
governmental agencies can provide service.  In the document below, the 
Electric Power Board of Chattanooga (EPB)  wants to expand its internet 
into a location that outside it's authorized area.

On 7/24/2014 3:28 PM, William Herrin wrote:
> 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
>
>