6th Circuit Asks Parties to FCC Municipal Broadband Case About State Legislation

Appeals wrote litigants in the North Carolina and Tennessee challenges to the FCC pre-emption order (Tennessee v. FCC, No. 15-3291, North Carolina v. FCC, No. 15-3555). “The panel directs counsel for the parties in this case that, in addition to addressing the arguments in the briefs, they should be prepared to answer questions about the significance, if any, of the pending legislation in both states that would amend the statutes to remove the barriers preempted by the FCC (Tenn. -- HB2133/SB2200 and NC HB349),” the clerk of the court wrote in a brief letter Friday. The only reason for the court to ask about the pending bills is if it suspects they might be enacted in the near future and moot aspects of the case, said Brad Ramsay, general counsel for NARUC, which intervened in support of the two states. But the odds of both bills being enacted are “very slim,” he told us Monday. “The legislation hasn’t passed, so you have a live case and controversy.” The court’s query is a bit “odd,” said Andrew Schwartzman, senior counselor at the Georgetown Institute for Public Representation, who filed an amicus brief supporting the FCC order on behalf of the Benton Foundation and other public-interest groups. “It is not unusual for some courts to notify the parties to be prepared to address particular questions, and that’s really helpful,” he told us. “But the questions here would be best done by letter because they’re completely speculative.” Nobody knows whether the bills will pass and in what form, he said. The FCC and North Carolina and Tennessee litigants had no comment.