Republican FCC aide predicts uphill battle on local Internet fight

The Federal Communications Commission is on shaky legal ground if it wants to overturn state laws as it tries to increase competition among Internet providers, according to a top Republican aide at the agency.

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During an address in Minneapolis on Wednesday, Matthew Berry, chief of staff to Republican FCC Commissioner Ajit Pai, predicted an uphill battle for the agency as it intervenes in states where laws prevent local governments from starting their own Internet networks.

"When elected representatives at the national level are telling the Commission not to interfere with decisions made by elected representatives at the state level, unelected officials should pay attention," he said.

Overturning state laws would "provoke a court battle with state officials who should be our partners rather than our adversaries" and "bring [the FCC] into conflict with Congress," he continued.

Earlier this year, FCC Chairman Tom Wheeler pledged to promote competition among Internet providers by working with local governments to preempt state laws that keep local governments from creating municipal broadband projects.

While Democrats on Capitol Hill have applauded Wheeler, Republicans have said he is overstepping the agency's bounds.

In his speech, Berry sided with congressional Republicans, saying that the FCC's statutory authority — in the letter and spirit of the law — does not allow the agency to preempt state rules.

He pushed back on arguments from some that the FCC has authority under Section 706 of the Telecommunications Act — the same provision Wheeler is looking to use as he rewrites the agency's controversial net neutrality rules — to preempt state law, and warned that a preemption attempt "would be unlawful and sure to meet its end in court."

Pointing to language in the congressional report about the law that was removed as the bill moved through Congress, Berry said lawmakers "contemplated giving the FCC preemption authority in Section 706 and expressly decided not to do so." 

"Absent clear statutory authority, five unelected individuals, or more likely fewer, should not nullify the wishes of the people’s elected representatives in one state, let alone twenty-one states," he said.

"Such an action would demonstrate contempt both for representative democracy as well as for our nation’s federal system of government."

Instead of "pointless endeavors" like trying to preempt state law, the FCC should focus on "the critical tasks we have on our plate," including two upcoming high-profile airwave auctions, Berry said.

"We do not have the bandwidth to waste on a symbolic, feel-good effort that appears designed to appease a political constituency that is unhappy with where the FCC is headed on other issues."