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

Ray Soucy rps at
Tue Jul 22 20:55:40 UTC 2014

You're over-thinking it.  Use the power company as a model and you'll
close to the right path.

On Tue, Jul 22, 2014 at 4:05 PM, Eric Brunner-Williams
<brunner at> wrote:
> 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).
> Ray,
> 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?
> Eric

Ray Patrick Soucy
Network Engineer
University of Maine System

T: 207-561-3526
F: 207-561-3531

MaineREN, Maine's Research and Education Network

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