Correspondence to the FCC re: preemption of local government as a source of regulation

Miles Fidelman mfidelman at
Thu Jul 24 22:53:33 UTC 2014

Well that's where it gets tricky.

Section 253 of the Telecom Act says that nobody can write laws or 
regulations that preempt "any entity" from entering the telecom 
business.  The Act gives the FCC the power to preempt such laws and 

But, the Supreme Court has ruled that municipalities are subdivisions of 
the states - and the states can do whatever they want in regulating 
their piece parts.  So the FCC can't pre-empt the States in a lot of 
these cases.  A good summary, with citations, is at

But.........  the Supreme Court decision waffled on municipal utilities 
that are organized as independent authorities (i.e., separate legal 
entities).  I don't believe that's been tested up the chain to the 
Supreme Court - and I'll note that most of the successful municipal 
telecom. projects have been by electric power boards.  (But that success 
probably has more to do with those entities already being operating 
entities, with people, customers, billing, rights-of-way, and a need to 
string fiber for their own purposes.)

I'm also not clear on where the Supreme Court leaves "home rule" states, 
where municipalities are more at arms length from.  Any lawyers here who 
can comment?

Some more discussion at -- 
from Jim Baller, who is a very sharp attorney who does a lot of work for 
municipalities, on telecom.

Miles Fidelman

Jay Ashworth wrote:
> For the record, Eric, I'm certain that states can preempt municipalities. The question is can FCC preempt States?
> - jra
> On July 24, 2014 5:18:26 PM EDT, Eric Brunner-Williams <brunner at> wrote:
>> For those interested, first in my morning's inbox is a letter from
>> Oregon State Senator Bruce Starr (R-15, Hillsboro), and Nevada State
>> Senator Debbie Smith (D-13), President and President-elect,
>> respectively, of the National Conference of State Legislatures to FCC
>> Chairman Thomas Wheeler, expressing their firm conviction as of Tuesday
>> of this week that states have the constitutional authority to preempt
>> municipalities in the domain of communications infrastructure.
>> The letter is not a legal memo, so it expresses little of any use.
>> Anyone wanting a copy can probably find it on either the FCC or the
>> websites.
>> Next is "by hand" of today from Jim Baller, retained by the Electrical
>> Power Board of the City of Chatanooga, to the FCC. It is a 64pp legal
>> memo constituting a "Petition for Removal of Barriers to Broadband
>> Investment and Competition", that is, an argument that Section 706 of
>> the Telecommunication Act of 1996 takes precedence over Tenn. Code Ann.
>> § 7-52-601 ("Section 601").
>> Here is the link:
>> I expect the second correspondence will make more interesting reading.
>> Eric

In theory, there is no difference between theory and practice.
In practice, there is.   .... Yogi Berra

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