CEI joined the International Center for Law and Economics, TechFreedom, and six academic scholars in an amicus brief filed today in the U.S. Court of Appeals for Sixth Circuit in support of the petitioners in Tennessee v. FCC.
Our amicus brief supports the petitions of two states, Tennessee and North Carolina, urging the court to invalidate the FCC’s February 2015 order that preempted laws in both states regarding how their municipalities may provide broadband Internet access to consumers.
The brief argues that the FCC’s asserted basis of authority for its preemption, Section 706 of the Telecommunications Act of 1996, does not independently empower the FCC to do anything, let alone preempt laws enacted by elected state legislatures. To the contrary, Congress has consistently declined to grant the FCC the authority to regulate Internet service providers, going so far as to enact legislation stating that “[i]t is the policy of the United States … (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”
We also argue that the FCC’s interpretation of Section 706 is ineligible for Chevron deference, as Congress did not vest in the FCC the authority to administer Section 706.
RULING: On August 10, 2016, the 6th Circuit Court of Appeals ruled in favor of the petitioners. The court said the FCC lacks the authority to override the Tennessee and North Carolina legislatures and could not block the two states from setting limits on municipal broadband expansion. View the court's opinion.