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Title: NCSL Opposes Congressional Efforts to Preempt State Law With Regard to Municipal Broadband Networks
Committee: Communications, Technology & Interstate Commerce
Type: Action Calendar - Draft
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 seek to control the states’ sovereignty over its own political subdivisions by preempting state laws that either prohibit or regulate municipal broadband networks; and
WHEREAS, federal legislation, H.R. 5252 passed by the U.S. House of Representatives and similar legislation approved by the U.S. Senate Commerce Committee 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, this preemption contained in legislation primarily to establish a national video franchise 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 and supporters of the federal legislation 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 H.R. 5252 and the Senate substitute to H.R. 5252 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.
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