The case(s) for, and against, preemption (was Re: Muni Fiber and Politics)

Eric Brunner-Williams brunner at
Tue Jul 22 20:05:41 UTC 2014

On 7/22/14 11:13 AM, Ray Soucy wrote:
> Municipal FTTH needs to be a regulated public utility (ideally at a
> state or regional level).  It should have an open access policy at
> published rates and be forbidden from offering lit service on the
> fiber (conflict of interest).


Could you offer a case for state (or regional, including a 
jurisdictional definition) preemption of local regulation?

Counties in Maine don't have charters, and, like most states in the 
North East, their powers do not extend to incorporated municipalities. 
Here in Oregon there are general law counties, and chartered counties, 
and in the former, county ordinances to not apply, unless by agreement, 
with incorporated municipalities, in the later, the affect of county 
ordinances is not specified, though Art. VI, sec. 10 could be read as 
creating applicability, where there is a "county concern". In 
agricultural regions (the South, the Mid-West, the West), country 
government powers are significantly greater than in the North East, and 
as in the case of Oregon, nuanced by the exceptions of charter vs 
non-charter, inferior jurisdictions. Yet another big issue is Dillon's 
Rule or Home Rule -- in the former the inferior jurisdictions of the 
state only have express granted powers on specific issues, and in the 
latter the inferior jurisdictions of the state have significant powers 
"enshrined in the State(s) Constitution(s)".

I mention all this simply to show that one solution is not likely to fit 
all uses.

Now because I've worked on Tribal Bonding, I'm aware that the IRS allows 
municipalities to issue tax free bonds for purposes that are wider than 
the "government purposes" test the IRS has imposed on Tribal Bonding (up 
until last year). Stadiums, golf courses, and {filling a hole in | using 
pole space on} public rights-of-way -- forms of long-term revenue Tribes 
are barred from funding via tax free bonds by an IRS rule.

The (two, collided) points being, municipalities are likely sources of 
per-build-out funding, via their bonding authority, and you've offered a 
claim, shared by others, that municipalities should be preempted from 
per-build-out regulation of their infrastructure.

How should it work, money originates in the municipality of X, but 
regulation of the use of that money resides in another jurisdiction?


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