Tennessee attorneys filed their appeal last week against the Federal Communications Commission’s pre-emption of a 1999 law limiting municipal broadband providers.
The nearly 60-page filing challenges the validity of an FCC order allowing EPB to expand its fiber optic infrastructure.
The state sided with two dissenting commissioners who said the federal agency was usurping “fundamental aspects of state sovereignty.” The attorneys argued that the FCC order overrides the Tennessee Legislature’s decisions regarding its municipalities.
“Far from being a simple matter of pre-emption, as the FCC claims, this intervention between the state and its subordinate entities is a manifest infringement on state sovereignty,” Joshua Turner, the state’s counsel of record, said in the filing.
The state maintains that the FCC is using a “vast and novel claim” to support its position and is undermining foundational principles of a federalist system of government.
“The order purports to restructure Tennessee’s political subdivisions, granting them unfettered geographic reach and authority that the Tennessee Legislature withheld,” Turner said.
The filing in the U.S. 6th Circuit Court of Appeals is the latest salvo in a legal battle that could take years to resolve.
The FCC voted in March to pre-empt a 1999 Tennessee law that prevents EPB, the Chattanooga-owned utility company, from providing broadband services in neighboring Bradley County. The FCC declared that the Tennessee law is a barrier to overall broadband investment.
Tennessee Attorney General Herbert Slatery filed an appeal at the urging of state lawmakers.
“This is a matter involving a claim of federal pre-emption by the FCC and Tennessee’s right to determine the authority and market area of a political subdivision organized under Tennessee law,” Slatery said in a statement then.
The 1999 law prevents municipal-owned utility companies from extending broadband services outside the territories where they provide electricity.
Meanwhile, state Rep. Kevin Brooks said he and state Sen. Janice Bowling will reintroduce a bill in January removing the restriction from Tennessee law. A similar bill failed to get enough support in the Senate earlier this year and was pulled from consideration.