Supreme Court Grants Certiorari in Nixon v. Missouri Municipal League
June 23, 2003. The Supreme Court granted certiorari in Nixon v. Missouri Municipal League, and related petitions, regarding 47 U.S.C. § 253(a) and state statutes that prohibit political subdivisions from offering telecommunications services. See, Order List [12 pages in PDF] at page 2.
The three consolidated petitions are Nixon v. Missouri Municipal League (S.C. No. 02-1238 ), FCC v. Missouri Municipal League (S.C. No. 02-1386), and Southwestern Bell v. Missouri Municipal League (S.C. No. 02-1405). The Court ordered that "The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument."
In these petitions, the Nixon (as Attorney General of Missouri), the Federal Communications Commission (FCC), and Southwestern Bell, each sought review of the opinion [11 pages in PDF] of the U.S. Court of Appeals (8thCir) in Missouri Municipal League v. FCC, 299 F.3d 949 (2002). See, FCC's petition for writ of certiorari [71 pages in PDF], Nixon's petition for writ of certiorari [37 pages in PDF], and the respondents' brief in opposition [PDF] to granting certiorari.
The 8th Circuit vacated an FCC Memorandum Opinion and Order [18 pages in PDF] denying a request that it preempt a Missouri statute that prohibits political subdivisions of the state from offering telecommunications services. The 8th Circuit held that the term "any entity" in 47 U.S.C. § 253(a) includes political subdivisions of states. See, story titled "8th Circuit Rules States Cannot Bar Municipalities From Providing Telecom Services" in TLJ Daily E-Mail Alert No. 492, August 15, 2002.
The opinion of the 8th Circuit is in conflict with the opinion of the U.S. Court of Appeals (DCCir) in City of Abilene v. FCC, 164 F.3d 49 (1999). The FCC, by a Memorandum Opinion and Order, also known as the Texas Preemption Order, declined to preempt a Texas statute that is very similar to the Missouri statute. The City of Abilene and others filed a petition for review with the U.S. Court of Appeals (DCCir). The DC Circuit issued its opinion in 1999 upholding the FCC order.
Missouri Statutes, Section 392.410(7), provides that, subject to certain enumerated exceptions, "No political subdivision of this state shall provide or offer for sale, either to the public or to a telecommunications provider, a telecommunications service or telecommunications facility used to provide a telecommunications service for which a certificate of service authority is required pursuant to this section."
47 U.S.C. § 253(a) provides that "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." (Emphasis added.)
Various municipalities and municipal organizations filed a petition with the FCC asking that it preempt this statute for being in violation of § 253(a).
The FCC denied the request to preempt by Memorandum Opinion and Order (MOO) released on January 12, 2001. (This is CC Docket No. 98-122.) The FCC wrote that "We do not preempt the enforcement of HB 620 to the extent that it limits the ability of municipalities or municipally owned utilities, acting as political subdivisions of the state of Missouri, from providing telecommunications services or facilities. As we found in the Texas Preemption Order, the term ``any entity´´ in section 253(a) of the Act was not intended to include political subdivisions of the state, but rather appears to prohibit restrictions on market entry that apply to independent entities subject to state regulation."
The FCC added that "municipal entry into telecommunications could raise issues regarding taxpayer protection from economic risks of entry, as well as questions concerning possible regulatory bias when a municipality acts as both a regulator and a competitor."
The municipal entities then filed a petition for review with the Court of Appeals. Southwestern Bell and Nixon (Missouri) intervened in support of the FCC. The National Association of Telecommunications Officers and Advisors (NATOA) and the United Telecom Council supported the municipal parties, as amici curiae.
The Appeals Court vacated the FCC order, and remanded. It reasoned that "The dispute hinges on the meaning of the phrase ``any entity´´ in § 253 of the Act. More precisely, do the words ``any entity´´ plainly include municipalities and so satisfy the Gregory plain statement rule? We hold that they do."
The Supreme Court held in Gregory v. Ashcroft, that a court must not construe a federal statute to preempt traditional state powers unless Congress has made its intention to do so unmistakably clear in the language of the statute.
The Appeals Court concluded "that because municipalities fall within the ordinary definition of the term ``entity,´´ and because Congress gave that term expansive scope by using the modifier ``any,´´ individual municipalities are encompassed within the term ``any entity´´ as used in § 253(a)."
Other States. Missouri is not the only state that bans local governments from providing telecommunications services. Nor were the petitions for writ of certiorari in the Missouri case the only petitions received by the Supreme Court. Also on June 23, the Supreme Court denied certiorari, without opinion, in Nebraska Telecommunications Association v. Lincoln, Nebraska, a related case arising in the state of Nebraska. See, Order List [12 pages in PDF] at page 9.
This case is Nebraska Telecommunications Association and Nebraska Cable Communications Association v. City of Lincoln, Nebraska, S.C. No. 02-1591.
Nebraska has a law prohibiting a political subdivision of the state from holding a permit as a contract carrier of intrastate telecommunications service. See, Neb. Rev. Stat. §§ 86-128(1)(b) and 86-575(2) (Cum. Supp. 2002), and In re Lincoln Electric System, 655 N.W.2d 363 (Neb. 2003).
See also, amicus brief [24 pages in PDF] in the Nebraska case submitted by the Independent Telephone and Telecommunications Alliance (ITTA), National Telecommunications Cooperative Association (NTCA), U.S. Telecom Association (USTA), and the Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO).
See also, Iowa Tel. Ass'n. v. City of Hawarden, 589 N.W. 2d 245 (Iowa 1999).
International Trade Negotiations. In March, 2003, the
U.S. Trade Representative (USTR) made an "Initial
Offer" [120 pages in PDF] to the World Trade
Organization (WTO) regarding opening access to telecommunications,
information, and other services. The USTR states in the section regarding "basic
telecommunications services" that the U.S. would commit to "Maintain an absence
of national government ownership in public telecommunications service
suppliers". See, story titled "USTR Proposes to Liberalize Trade in
Telecommunication and Information Services" in
TLJ Daily E-Mail
Alert No. 655, May 5, 2003.