On March 20, 2015, the Attorney General for the state of Tennessee, Herbert Slatery, filed an appeal of the recent FCC Order (FCC 15-25, WC Docket Nos. 14-115 and 14-116) with the Sixth Circuit Court of Appeals in Cincinnati. The appeal (The State of Tennessee vs. Federal Communications Commission and United States of America, Case: 15-3291) was made on the grounds that the Order is “(1) contrary to the United States Constitution; (2) in excess of the Commission’s authority; (3) is arbitrary, and an abuse of discretion within the meaning of the Administrative Procedure Act; and (4) is otherwise contrary to law”.

The order allowed for a preemption of Tennessee Law governing the “operation of electric plants, including the Electric Power Board of Chattanooga (EPB), an instrumentality of the City of Chattanooga, created and controlled by the State of Tennessee”. This came as a result of the EPB seeking to expand the territory which it currently supplies broadband and video service to in response to “regular requests” from neighboring communities. In response the FCC found that under sections 706(a) and (b) they have the authority to preempt state law in some cases. In this case the FCC found that the “territorial restriction of Tennessee Code section 601 is a barrier to broadband deployment and infrastructure investment and limits competition”.

While the FCC order only directly affected the EPB and the City of Wilson, NC, it also indicated that the Commission would investigate, when necessary, any additional state barriers to the limitation of broadband expansion by individual state laws. Since the appeal is being made within the Sixth Circuit Court that covers Kentucky, Michigan, Ohio and Tennessee, it will be interesting to see if the State of North Carolina also appeals the decision that affects the city of Wilson, NC to the Fourth Circuit court that governs their state.

By Ed Sullivan, CCMI