The Federal Communications Commission today moved to pre-empt two state laws that restrict the deployment of city-owned broadband networks.

FCC Chairman Tom Wheeler this week will recommend that the agency approve two petitions filed by officials from Tennessee and North Carolina, who want to expand municipal networks in Chattanooga and Wilson, respectively. A vote on the issue is expected at the Feb. 26 FCC open meeting.

"Communities across the nation know that access to robust broadband is key to their economic future—and the future of their citizens," Wheeler said in a statement. "Many communities have found that existing private-sector broadband deployment or investment fails to meet their needs. They should be able to make their own decisions about building the networks they need to thrive."

"After looking carefully at petitions by two community broadband providers asking the FCC to pre-empt provisions of state laws preventing expansion of their very successful networks, I recommend approval by the Commission so that these two forward-thinking cities can serve the many citizens clamoring for a better broadband future," Wheeler said.

The Electric Power Board (EPB) in Chattanooga provides gigabit fiber Internet, voice, and video, as well as smart grid services. EPB cannot expand into neighboring areas, however, because state law says it can only provide service in its electric service territory.

Wilson, North Carolina's Greenlight service, meanwhile, also provides gigabit Internet, voice, and video to residents and free Wi-Fi in downtown areas. Greenlight wants to expand to the surrounding five counties, but state law imposes various restrictions, including a ban on providing service at a lower fee than major ISPs.

The FCC's action would only affect the laws in Tennessee and North Carolina. There are approximately 21 states with laws that restrict city-owned broadband networks right now; if the other 19 states want the FCC to intervene, they have to file their own complaints with the agency, like Tennessee and North Carolina did.

This would be the first time that the FCC has pre-empted a state law on municipal broadband, but it has stepped into other state-level fights in the past, such as the 2004 decision that found VoIP provider Vonage is an interstate service and cannot be regulated by the states as a traditional telephone service.

The big question, of course, is whether the FCC has the authority to make this move. The FCC pointed to Section 706 of the Telecommunications Act, which gives the agency authority to remove barriers to broadband investment and competition. A federal agency can pre-empt state laws if those laws conflict with its regulations or policies, as long as they are working within the scope of their authority, and the FCC believes that applies here.

According to agency officials, a state can reject a city's request to provide broadband service. But once they are approved to enter the market, the state cannot impose regulatory burdens that would prevent the expansion of a city network.

The news comes after President Obama last month formally voiced his support for municipal broadband networks, arguing that we "should do everything we can to push back" against laws that ban city-run Internet service. The president formally opposed measures that limit municipal broadband, and the White House urged the FCC to take up the issue by "addressing barriers inhibiting local communities from responding to the broadband needs of their citizens."

Not everyone is as concerned as Obama and Chairman Wheeler. In a Friday blog post, Republican FCC Commissioner Michael O'Rielly argued that the state laws are not as onerous as some have said.

"[I]t is clear that many of the limitations or restrictions appear to be justified practices by state governments and should be excluded from any preemption discussion," O'Rielly wrote. "Beyond the extensive rhetoric and absent Congressional direction, nullifying state-enacted taxpayer protections to further a political goal sends the Commission down an extremely troubling path."

Recently, the FCC also increased its definition of broadband from 4 Mbps download and 1 Mbps upload to 25 Mbps/2Mbps.

The Feb. 26 meeting, meanwhile, should be quite the event, as the FCC is also tentatively scheduled to address net neutrality that day.

For more cities with gigabit Internet, see the slideshow above.

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