In its filing dated November 5, the DOJ stated briefly that “it takes no position in these cases.” The filing was referring to two specific cases that the FCC is facing against Tennessee and North Carolina. The state laws would restrict local city-run broadband projects. Refusing to take a position means the DOJ will leave the FCC to argue its point on its own.
The DOJ’s decision comes despite Obama’s administration previously backing such projects.
Locally run ISPs had asked the FCC for help in pre-empting what they called unfair state laws that hindered their ability to compete with larger ISPs. Municipal broadband providers are itching to expand their reach and offer more services, but often they are restricted by state laws.
Randolph May, a former FCC lawyer and currently a member of the Free State Foundation think tank, writes that the DOJ decision is very rare and questions the legality of the FCC’s pre-emptive moves against state laws.
“We don’t know for sure, but my best guess is that the DOJ, quite rightly, is concerned about the lawfulness of the FCC’s preemption action. If so, the concern is justified,” he said.
The DOJ still supports the FCC’s move to reclassify broadband companies as common carriers under net neutrality rules.
The Washington Post reports that if the FCC’s cases that oppose city restrictions on local broadband projects are indeed weak, it could have long term effects on the future of locally-built broadband. The Telecommunications Act, for example, does not specifically state if the FCC can pre-empt state laws. The FCC has not yet commented on the DOJ’s decision.
