CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 02-1238. Argued January 12, 2004--Decided March 24, 2004^*

After Missouri enacted a statute forbidding its "political subdivision[s to] provide or offer for sale ... a telecommunications service or ... facility," the municipal respondents, including municipally owned utilities, petitioned the Federal Communications Commission (FCC) for an order declaring the statute unlawful under 47 U. S. C. §253, which authorizes preemption of state and local laws and regulations "that prohibit or have the effect of prohibiting the ability of any entity" to provide telecommunications services. Relying on its earlier order resolving a challenge to a comparable Texas law and the affirming opinion of the District of Columbia Circuit, the FCC refused to declare the Missouri statute preempted, concluding that "any entity" in §253(a) does not include state political subdivisions, but applies only to independent entities subject to state regulation. The FCC also adverted to the principle of Gregory v. Ashcroft, 501 U. S. 452, that Congress needs to be clear before it constrains traditional state authority to order its government. The Eighth Circuit panel unanimously reversed, explaining that §253(a)'s word "entity," especially when modified by "any," manifested sufficiently clear congressional attention to governmental entities to get past Gregory.

Held: The class of entities contemplated by §253 does not include the State's own subdivisions, so as to affect the power of States and localities to restrict their own (or their political inferiors') delivery of telecommunications services. Pp. 4-14.

Full Text of Opinion