Final arguments filed in Chattanooga broadband lawsuit

Final arguments have been filed in a federal court lawsuit that challenges a Federal Communications Commission ruling that would allow Chattanooga and Wilson, N.C., to expand their broadband service despite state laws forbidding expansion, reports the Times-Free Press in a review of the situation.

Tennessee Attorney General Herbert Slatery and his staff want to overturn the FCC decision and block expansion by Chattanooga’s electric power board, known as EPB, suggesting it’s a states’ rights issue.

The courtroom maneuvering comes with efforts afoot to change the Tennessee law in the Legislature and with Congress considering a bill that would overturn the FCC ruling.

Excerpts from the story:

Slatery, who has hired a Washington, D.C., law firm to fight the FCC ruling, claims in final arguments made to the court this week that the federal agency is trying to improperly interfere with the authority of state governments to regulate telecommunication providers. Tennessee’s attorney general asserts the FCC is violating the 10th amendment restrictions on what the federal government can direct states to do.

“By rewriting Tennessee and North Carolina state laws to expand municipal powers, the FCC infringes upon an inviolable aspect of state sovereignty, exceeds the agency’s statutory authority and contradicts Supreme Court precedent,” Washington, D.C., attorney Joshua Turner wrote in a 57-page argument filed on behalf of Tennessee’s attorney general. “The [FCC] order is an affront to state sovereignty, and it cannot stand.”

…Chattanooga’s EPB and the city of Wilson, N.C…. (contend) that state limits on where they could offer broadband service constituted a barrier to broadband deployment contrary to what Congress wanted and empowered the FCC to avoid.

In court filings, EPB attorney Rick Hitchcock also noted that, as a municipal utility in a home rule city, EPB is not regulated by the state in its service territory and previous attorneys general in Tennessee have affirmed the authority of EPB to offer telecom services throughout the state.

EPB President Harold DePriest said the utility isn’t looking to expand to make more money, but it is responding to requests from some rural residents who live close to EPB’s existing service region but have no access to broadband connections.

…The appellate court is reviewing final arguments made this week by proponents and opponents of municipal broadband. The court could ask for oral arguments but is expected next year to issue its ruling, which could then be appealed to the U.S. Supreme Court.

In the meantime, DePriest said EPB is encouraging the Tennessee Legislature to lift its territorial limits on municipal broadband to allow those that want the service to get it. Changing the state law in the legislative session that starts in January could be quicker than waiting on a final decision from the court, DePriest said.

In the General Assembly, such legislation has picked up the support of area Republican lawmakers, including state Sens. Janice Bowling, R-Tullahoma, and Todd Gardenhire, R-Chattanooga, and state Reps. Kevin Brooks, R-Cleveland, and Mike Carter, R-Ooltewah.

“It’s going to be an uphill battle next year to get this passed, but the people waiting on broadband service outside of EPB’s area want and need it,” Gardenhire said.