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NCSL Opposes Congressional Efforts to Preempt State Laws
With Regard to Municipal Broadband Networks
Committee on Communications, Technology & Interstate Commerce
WHEREAS, the United States Supreme Court in its decision Hunter v. City of Pittsburgh, recognized that municipalities do not have any rights under the federal Constitution to challenge a state legislature’s enactments; and
WHEREAS, the United States Supreme Court stated in that decision,
“Municipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them…In all these respects the State is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States;” and
WHEREAS, the Supreme Court further ruled in 1933 in the decision, Williams v. Baltimore, that “a municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator;” and
WHEREAS, the United States Supreme Court in 2004 by a vote of 8-1 in Nixon v. Missouri Municipal League, upheld a Missouri statute forbidding the state’s political subdivisions from offering telecommunications or Internet services; and
WHEREAS, at least fourteen states, Arkansas, Florida, Minnesota, Missouri, Nebraska, Nevada, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin have enacted statutes to regulate, limit or prohibit the ability of municipalities with regard to funding or creating high speed Internet networks, broadband and wireless technology known as WiFi; and
WHEREAS, some in Congress (S. 1294; S. 1504; and HR.2726) seek to control the states’ sovereignty over its own political subdivisions by preempting state laws that either prohibit, allow or regulate municipal broadband networks; and
WHEREAS, the Barton-Rush-Upton-Pickering Committee Print entitled “The Communications, Promotion and Enhancement Act of 2006” would preempt any state statute, regulation, or other state legal requirement with regard to “allowing cities and towns to develop their own broadband networks;” and
WHEREAS, the Committee on Energy and Commerce of the United States House of Representatives will begin to mark-up this legislation this month; and
WHEREAS, Title IV-Municipal Provision of Services of the Barton-Rush-Upton-Pickering Committee Print would violate the 10th Amendment to the Constitution of the United States, which reserve to the states powers not delegated to the federal government; and
WHEREAS, the sponsors of the Energy and Commerce Committee Print fail to make any case that state regulation and prohibition of municipal networks is a violation of the Constitutions’ Interstate Commerce Clause;
NOW, THEREFORE BE IT RESOLVED, that the National Conference of State Legislatures finds that certain provisions of the Barton-Rush-Upton-Pickering Committee Print entitled, “The Communications, Promotion, and Enhancement Act of 2006,” as well as other congressional legislation, S. 1294; S. 1504; and HR 2726, which seek to prohibit state sovereignty over its political subdivisions are a violation of the 10th Amendment to the Constitution;
BE IT FURTHER RESOLVED, that NCSL will oppose such blatant disregard of state sovereignty as contained in the above referenced legislation; and
BE IT FURTHER RESOLVED, that should the Congress and the Administration enact such legislation that preempts state sovereignty and the ability of state legislatures to enact laws or regulations with regard to the state’s municipalities, NCSL would assist state legislatures seeking to challenge the constitutionality of such federal law; and
BE IT FURTHER RESOLVED, that a copy of this resolution be sent to all members of the 109th Congress and the President of the United States.
Adopted 14-0 by the Committee on Communications, Technology & Interstate Commerce Committee on Friday, April 7, 2006.
Unanimously adopted at the NCSL General Business Meeting on Saturday, April 8, 2006.
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