November 17, 2003—If the words “any entity” in Section 253(a) of the Telecommunications Act of 1996 are given their plain meaning, they would preempt a state ban on municipalities offering their citizens telecommunications services, the American Public Power Association (APPA) said in a recent brief filed in Nixon vs. Missouri Municipal League.
Section 253(a) of the Telecom Act preempts state barriers to entry by “any entity.” Last year, the US Court of Appeals for the Eighth Circuit determined that Congress intended to include cities and their utilities within the broad language of the statute. However, the Federal Communications Commission, the state of Missouri, and Southwestern Bell are seeking reversal of the Eighth Circuit’s decision.
APPA states that municipalities and municipally owned utilities are “unquestionably entities.”
“As the FCC itself emphasizes, municipalities are a singularly important source of competition in telecommunications,” the brief says. “The legislative history and the structure of the Telecommunications Act demonstrate that Congress knew of the potential importance of municipal entrants when it adopted Section 253, and that Congress intended to protect the right of municipalities to enter telecommunications markets.”
Currently, twelve states have some barriers to entry by municipalities.
The Supreme Court will make a decision on the case in the spring.
