Emory Law Journal


John T. Cobb


In 2015, the FCC preempted statutes in North Carolina and Tennessee that limited the powers of municipally owned internet service providers to expand their networks to nearby underserved communities. The FCC determined, pursuant to Section 706 of the Telecommunications Act of 1996, that these state limits on municipal broadband networks were anticompetitive barriers to infrastructure investment. The States appealed the FCC order, arguing that the FCC did not have the authority to interpose itself between the States and their political subdivisions. Relying on the Supreme Court¿s earlier decision in Nixon v. Missouri Municipal League, the Sixth Circuit agreed with the States. This Comment argues that the Sixth Circuit should have applied a narrower reading of the clear statement rule, which would strike an appropriate balance between the FCC¿s unmistakably clear authority to regulate the deployment of broadband technology against the legitimate sovereign interests of the affected states.