The telephone and cable companies generally don't like competition. What are they doing to try to stop the spread of these kinds of networks?
They are doing a number of things at different levels. In state legislatures, they have been seeking laws that would have the effect of restricting local governments from engaging in communications activities or defining the ways that would make it impractical, if not impossible for them to build and operate these networks.
They've also been very active and very aggressive in local processes, where they've tried to dissuade decision makers, like city council members, from going forward with projects. A good example of that is all documented by a citizen group in Illinois called Tri-City Broadband Citizen Support. On their Web site they give a pretty good picture of how major incumbent providers of cable and telephone service resist efforts by communities to create advanced communication systems.
They've even been lobbying at the federal level. In the next Congress, there will likely be a major overhaul of the communications laws. I would imagine phone and cable companies will try to address some of these issues then.
They're also arguing before state public service or public utility commissions about terms of entry. And they've filed lawsuits in a variety of states.
Recently, local telephone companies won a key battle when the US Supreme Court ruled that Missouri had the right to pass laws prohibiting cities and local governments from selling telecommunications services. You helped litigate this case on behalf of the local governments. What's your reaction to the decision?
We are disappointed by the Supreme Court's ruling in the Missouri case. But three points stand out from the majority's opinion.
First, the court made it clear that the decision is not a ruling on the merits of municipal telecommunications.
Second, the majority gave two main reasons for finding that the term "any entity" in Section 253(a) does not cover public entities. One reason was that Congress could not have intended to create the "crazy quilt" of potential outcomes from state to state that could result if "any entity" were interpreted broadly. We, like the dissent, would have preferred that the majority decide the case on the basis of the facts before it, rather than on the basis of hypothetical (situations) that may never arise.
Third, the majority's other main point, in which Justice (Antonin) Scalia concurred, was that Congress had not spoken with sufficient clarity in Section 253(a) to satisfy the court's high standards for determining whether a federal statute pre-empts a traditional state power. We disagree, but when eight justices of the Supreme Court have spoken on a point like this, we must accept their conclusion.
