In 2016, the Sixth Circuit in Tennessee v. FCC
overturned an FCC preemption order striking down state
laws that restricted municipal broadband providers from
servicing communities outside of their respective
municipal borders. The court held Congress had not
provided a clear statement in § 706 of the
Telecommunications Act of 1996 that it intended to grant
the FCC preemption power under these circumstances.
The immediate practical consequences of the decision were
that communities previously serviced by municipal
broadband providers, but located outside of municipal
borders, were now at the mercy of state laws that sought to
restrict that service.
This sounds clear cut. This Note, however, asserts that
the Sixth Circuit's decision did nothing to serve the
underlying purposes of the clear statement rule-that is,
putting Congress on notice of what will satisfy the court's
clear statement rule so that Congress may modify its
drafting practices accordingly. This Note argues that the
court's unusually strong clear statement rule in Tennessee
v. FCC provided no guidance to Congress, but merely
served to reinforce congressional drafters' skepticism that
the courts will provide consistent feedback.
Whatling, Lee D.
"Tennessee v. FCC and the Clear Statement Rule,"
Georgia Law Review: Vol. 51:
3, Article 7.
Available at: https://digitalcommons.law.uga.edu/glr/vol51/iss3/7