MEDIA ADVISORY August 10, 2016
Contact: Randolph May at 202-285-9926
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FSF's Randolph May Reacts to Court's Municipal Broadband Preemption Decision
In reaction to the release today of the D.C. Circuit's decision vacating the FCC's decision preempting state laws that restrict municipal broadband systems, Free State Foundation President Randolph May issued the following statement:
"The federal appeals court decision vacating the FCC's preemption of state laws restricting municipal broadband systems is a welcome rebuke to the agency's continuing overreach and efforts to extend its bureaucratic powers. The court found that the FCC order unlawfully "essentially serves to re-allocate decision-making power between the states and their municipalities." Just as I predicted over and over again, including in this essay in The Hill, the court relied on the Supreme Court's decision in Nixon v. Missouri Municipal League (2004). As I said in The Hill piece:
"In any proper conception of our federalist system, it is not enough for [Tom] Wheeler simply to suggest that the wishes of municipalities should prevail over the state sovereigns under which they are created. After all, in our constitutional regime, we do not recognize, as a matter of legal status, 'citizens' of Provo or Lafayette, but we do recognize citizens of Utah and Louisiana. And the Constitution confers upon these citizens of states the authority to exert their will through their elected representatives to adopt laws that restrict municipal activities."
While I am not confident that this will be the case, perhaps the court's rebuke will cause FCC Chairman Tom Wheeler to be more cautious about stretching the limits of the FCC's authority in pursuit of dubious policy objectives. However great Chairman Wheeler may imagine the FCC's authority, or wish it to be, the appeals court has made clear that such authority does not extend to altering the federalist structure of our Constitution."
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Randolph J. May, President of the Free State Foundation, is a former FCC Associate General Counsel and a former Chairman of the American Bar Association's Section of Administrative Law and Regulatory Practice. Mr. May is a current public member of the Administrative Conference of the United States, and a Fellow at the National Academy of Public Administration.
Mr. May is a nationally recognized expert in communications law, Internet law and policy, and administrative law and regulatory practice. He is the author of more than 180 scholarly articles and essays on communications law and policy, administrative law, and constitutional law. Most recently, Mr. May is the co-author, with FSF Senior Fellow Seth Cooper, of the recently released The Constitutional Foundations of Intellectual Property and is the editor of the book, Communications Law and Policy in the Digital Age: The Next Five Years. He is the author of A Call for a Radical New Communications Policy: Proposals for Free Market Reform. And he is the editor of the book, New Directions in Communications Policy and co-editor of other two books on communications law and policy: Net Neutrality or Net Neutering: Should Broadband Internet Services Be Regulated And Communications Deregulation and FCC Reform.
The Free State Foundation is a non-profit, independent free market-oriented think tank.
The Free State Foundation
P. O. Box 60680
Potomac, MD 20859
Tel: 301-984-8253
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