Petition for Writ of Certiorari

INTRODUCTION AND STATEMENT
Using a wide variety of models, states create a
range of political subdivisions. As the sovereign, each
state dictates what each subdivision can and cannot do.
This case presents a direct conflict between two courts
of appeals – reflected in decisions by two state supreme
courts, and in decisions by a state court of appeals and a
federal district court – regarding whether Congress has
appropriated the States’ ability to define the authority of
their subdivisions. In the decision below, the U.S.
Court of Appeals for the Eighth Circuit held that
Congress authorized any subdivision of the State of
Missouri to engage in the telecommunications business
– despite express provisions of state law that preclude
such activities.
In 1997, the Missouri General Assembly enacted
§392.410.7, Mo. Rev. Stat. (1997). Section 392.410.7
restricts the authority of political subdivisions of the
State of Missouri from providing or offering for sale the
kind of telecommunications service for which a
certificate of service authority is required. Section
392.410.7 states that it shall not be construed to restrict
a political subdivision from allowing nondiscriminatory
use of its rights of way or from providing certain kinds
of telecommunications services or facilities such as
those for its own use, for emergency services, medical
or educational purposes, or Internet type services. But
the General Assembly decided that it is not appropriate
for State subdivisions – whether they be cities, counties,
school districts, fire protection districts, levee districts,
or some other organization – to become
telecommunications providers.
That statute was attacked by the Missouri
Municipal League and a handful of municipal utilities
(collectively the “Missouri Municipals”) in a petition
filed on July 8, 1998, with the Federal Communications
Commission. The Missouri Municipals claimed that §
392.410.7 is preempted by 47 U.S.C. 253(a). Section
253(a), a part of the Federal Telecommuni-cations Act
of 1996, bars state or local laws from prohibiting or
having the effect of prohibiting “the ability of any
entity to provide any interstate or intrastate
telecommunications service.”
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