North Carolina Attorney General Roy Cooper has filed a lawsuit challenging the FCC's decision to overturn a state law that limits a municipal broadband provider's ability to extend services into new communities.
"Despite recognition that the State of North Carolina creates and retains control over municipal governments, the FCC unlawfully inserted itself between the State and the State's political subdivisions," Cooper wrote to the U.S. Court of Appeals for the Fourth Circuit.
Cooper added in the suit that the FCC's action violates the U.S. Constitution; exceeds the commission's authority; "is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act; and is otherwise contrary to law."
On Feb. 26, the FCC voted along party lines 3-2 to preempt elements in state laws in North Carolina and Tennessee that were designed to restrict municipal providers in these communities from providing broadband service outside of their current serving areas, a move that could drive other states to act and present potential court challenges.
The FCC said the order will let communities choose whether or not to build their own networks based on their own mission and the ability to expand services to nearby communities.
At the time it gave its ruling, the FCC said it has authority under the Sec. 706 mandate to insure advanced telecommunications services are being deployed in a reasonable and timely manner.
Prior to making its decision on municipal broadband, Chattanooga, Tenn., and Wilson, N.C., approached the FCC to overturn the anti-municipal broadband laws they have on the books. Wilson built its fiber network in 2008, which was three years before North Carolina placed restrictions on municipal providers.
Although the FCC's decision does not affect laws in other states, it could set a precedent on how the regulator may rule on similar petitions that emerge. Today, there are more than 20 state laws that prevent or discourage municipalities from building their own broadband networks.
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