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 regulations. 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 http://www.techlawjournal.com/topstories/2004/20040324b.asp 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 http://www.baller.com/pdfs/jmt_barriers.pdf -- 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@nic-naa.net> 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 NCSL 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.
ยง 7-52-601 ("Section 601").
Here is the link: https://www.epb.net/downloads/legal/EPB-FCCPetition.pdf
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