Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act

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Stepping In: The FCC’s Authority to Preempt
~~March 26~~September 20, 2021 , 2021
State Laws Under the Communications Act
Chris D. Linebaugh
The line between federal and state authority plays a central role in modern communications law. The line between federal and state authority plays a central role in modern communications law.
Legislative Attorney Legislative Attorney
Rather than fully displacing state law, the Communications Act of 1934 (Communications Act or Rather than fully displacing state law, the Communications Act of 1934 (Communications Act or

Act) sets up a dual system of federal and state regulation. At the federal level, the Act) sets up a dual system of federal and state regulation. At the federal level, the
Eric N. Holmes
Communications Act gives the Federal Communications Commission (FCC or Commission) Communications Act gives the Federal Communications Commission (FCC or Commission)
Legislative Attorney Legislative Attorney
broad authority to regulate wired and wireless telephony, radio transmissions, cable services, and broad authority to regulate wired and wireless telephony, radio transmissions, cable services, and

matters that are ancillary to these areas. At the same time, however, the Act expressly preserves matters that are ancillary to these areas. At the same time, however, the Act expressly preserves
some state regulatory authority over these technologies. Consequently, the boundary between the some state regulatory authority over these technologies. Consequently, the boundary between the

FCC’s authority and the states’ has been a source of dispute. FCC’s authority and the states’ has been a source of dispute.
The FCC has the upper hand in such conflicts. The Communications Act gives the FCC broad regulatory authority and, along The FCC has the upper hand in such conflicts. The Communications Act gives the FCC broad regulatory authority and, along
with it, the ability to preempt state laws that conflict with or frustrate its regulatory actions. When the FCC is acting within its with it, the ability to preempt state laws that conflict with or frustrate its regulatory actions. When the FCC is acting within its
proper statutory authority, the U.S. Constitution’s Supremacy Clause ensures that its actions prevail. Nevertheless, the FCC’s proper statutory authority, the U.S. Constitution’s Supremacy Clause ensures that its actions prevail. Nevertheless, the FCC’s
statutory preemption authority is not boundless. The extent to which the FCC may displace state and local laws is limited by statutory preemption authority is not boundless. The extent to which the FCC may displace state and local laws is limited by
the scope of its regulatory jurisdiction, express statutory provisions preserving or defining the scope of state laws, and the scope of its regulatory jurisdiction, express statutory provisions preserving or defining the scope of state laws, and
interpretive presumptions that courts have applied to preserve the usual constitutional balance between the federal and state interpretive presumptions that courts have applied to preserve the usual constitutional balance between the federal and state
governments. governments.
Far from being an abstract debate, the FCC’s ability to preempt state laws lies at the heart of many of its regulatory initiatives Far from being an abstract debate, the FCC’s ability to preempt state laws lies at the heart of many of its regulatory initiatives
in recent years. In particular, preemption is at the forefront of the Commission’s efforts to (1) remove net neutrality in recent years. In particular, preemption is at the forefront of the Commission’s efforts to (1) remove net neutrality
requirements, (2) maintain a lightly-regulated approach to Voice over Internet Protocol (VoIP), (3) accelerate deployment of requirements, (2) maintain a lightly-regulated approach to Voice over Internet Protocol (VoIP), (3) accelerate deployment of
fifth-generation wireless (5G) infrastructure, (4) facilitate municipal (or “community”) broadband, and (5) promote the fifth-generation wireless (5G) infrastructure, (4) facilitate municipal (or “community”) broadband, and (5) promote the
provision of cable television and internet services. State and local governments have challenged these initiatives in court. In provision of cable television and internet services. State and local governments have challenged these initiatives in court. In
some cases, courts have held that the FCC overstepped its statutory bounds. In other cases, the legal challenges remain some cases, courts have held that the FCC overstepped its statutory bounds. In other cases, the legal challenges remain
ongoing, leaving a cloud of uncertainty over the FCC’s actions. ongoing, leaving a cloud of uncertainty over the FCC’s actions.
This Report discusses these issues in more detail. It begins with an overview of the legal framework governing the FCC’s This Report discusses these issues in more detail. It begins with an overview of the legal framework governing the FCC’s
preemption actions, first discussing general federal preemption principles and then explaining the FCC’s preemption preemption actions, first discussing general federal preemption principles and then explaining the FCC’s preemption
authority under the Communications Act. The Report then reviews recent FCC initiatives in which FCC preemption plays a authority under the Communications Act. The Report then reviews recent FCC initiatives in which FCC preemption plays a
key role. Specifically, it explains how the FCC has exercised its preemption authority—and the extent to which such key role. Specifically, it explains how the FCC has exercised its preemption authority—and the extent to which such
authority has been challenged or is uncertain—in the areas of net neutrality, VoIP, 5G infrastructure deployment, community authority has been challenged or is uncertain—in the areas of net neutrality, VoIP, 5G infrastructure deployment, community
broadband, and state and local regulation of cable operators. broadband, and state and local regulation of cable operators.
Congressional Research Service Congressional Research Service

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he line between federal and state authority plays a central role in modern communications he line between federal and state authority plays a central role in modern communications
law. Rather than fully displacing state law, the Communications Act of 1934, as amended, law. Rather than fully displacing state law, the Communications Act of 1934, as amended,
T sets up a “dual system” of federal and state regulation.1 At the federal level, the T sets up a “dual system” of federal and state regulation.1 At the federal level, the
Communications Act gives the Federal Communications Commission (FCC or Commission) Communications Act gives the Federal Communications Commission (FCC or Commission)
broad authority to regulate the development and operation of the nation’s wireless and wired broad authority to regulate the development and operation of the nation’s wireless and wired
communications services. This authority specifically includes regulating landline and mobile communications services. This authority specifically includes regulating landline and mobile
telephony (under Title II of the Act),2 radio transmissions (under Title III),3 and cable services telephony (under Title II of the Act),2 radio transmissions (under Title III),3 and cable services
(under Title VI).4 The Act, as interpreted by the U.S. Supreme Court, also gives the FCC (under Title VI).4 The Act, as interpreted by the U.S. Supreme Court, also gives the FCC
“ancillary jurisdiction” to regulate communications services closely related to the areas under its “ancillary jurisdiction” to regulate communications services closely related to the areas under its
primary jurisdiction.5 At the same time, primary jurisdiction.5 At the same time, ~~however,~~ the Act expressly preserves some state authority the Act expressly preserves some state authority
to act in these areas.6 Consequently, the boundary between the FCC’s authority and to act in these areas.6 Consequently, the boundary between the FCC’s authority and that of the statesthe states’
becomes critical when the two regulatory regimes clash. The FCC’s preemption authority gives it becomes critical when the two regulatory regimes clash. The FCC’s preemption authority gives it
the upper hand in such conflicts. Under the U.S. Constitution’s Supremacy Clause and the the upper hand in such conflicts. Under the U.S. Constitution’s Supremacy Clause and the
Communications Act, the FCC has broad authority to preempt state laws that conflict with or Communications Act, the FCC has broad authority to preempt state laws that conflict with or
frustrate its actions.7 frustrate its actions.7
Nevertheless, the FCC’s preemption authority is not boundless. Nevertheless, the FCC’s preemption authority is not boundless. ~~First, courts~~Courts have said that, as a have said that, as a
general matter, the FCC may only preempt state laws governing a communications service if general matter, the FCC may only preempt state laws governing a communications service if it
the FCC has regulatory jurisdiction over that service.8 For instance, Section 2(b) of the Act,9 as interpreted has regulatory jurisdiction over that service.8 For instance, Section 2(b) of the Act,9 as interpreted
by the Supreme Court, prohibits the FCC from regulating purely intrastate services under its by the Supreme Court, prohibits the FCC from regulating purely intrastate services under its
ancillary jurisdiction.10 ancillary jurisdiction.10 ~~Second, even~~Even if the Commission has regulatory authority, it must comply if the Commission has regulatory authority, it must comply
with specific provisions that either expressly preempt or expressly preserve state laws in a given with specific provisions that either expressly preempt or expressly preserve state laws in a given
area.
1 47 U.S.C. §§ 151–624. 1 47 U.S.C. §§ 151–624.
2 2 Id. §§ 201–276. §§ 201–276.
3 3 Id. §§ 301–399b. §§ 301–399b.
4 4 Id. §§ 521–573. §§ 521–573.
5 United States v. Sw. Cable Co., 392 U.S. 157, 178 (1968) ([T]he authority which we recognize today under § 152(a) 5 United States v. Sw. Cable Co., 392 U.S. 157, 178 (1968) ([T]he authority which we recognize today under § 152(a)
is restricted to that reasonably ancillary to the effective performance of the Commission’s various responsibilities for is restricted to that reasonably ancillary to the effective performance of the Commission’s various responsibilities for
the regulation of television broadcasting.”); United States v. Midwest Video Corp., 406 U.S. 649, 662 (1972) (“We the regulation of television broadcasting.”); United States v. Midwest Video Corp., 406 U.S. 649, 662 (1972) (“We
therefore concluded . . . that the Commission does have jurisdiction over CATV ‘reasonably ancillary to the effective therefore concluded . . . that the Commission does have jurisdiction over CATV ‘reasonably ancillary to the effective
performance of (its) various responsibilities for the regulation of television broadcasting . . . (and) may, for these performance of (its) various responsibilities for the regulation of television broadcasting . . . (and) may, for these
purposes, issue ‘such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law,’ as purposes, issue ‘such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law,’ as
‘public convenience, interest, or necessity requires.’”) (quoting ‘public convenience, interest, or necessity requires.’”) (quoting Sw. Cable Co., 392 U.S. at 178). , 392 U.S. at 178).
6 6 See, e.g., 47 U.S.C. §152(b) (“ . . . nothing in this chapter shall be construed to apply or to give the Commission , 47 U.S.C. §152(b) (“ . . . nothing in this chapter shall be construed to apply or to give the Commission
jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection
with intrastate communication service by wire or radio of any carrier . . .”). with intrastate communication service by wire or radio of any carrier . . .”).
7 See the section 7 See the section “Overview of the FCC’s Preemption Authority Under the Communications Act” for an overview of for an overview of
the FCC’s preemption authority. the FCC’s preemption authority.
8 8 See, , e.g., La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A] federal agency may preempt state law only , La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A] federal agency may preempt state law only
when and if it is acting within the scope of its congressionally delegated authority.”); Mozilla Corp. v. FCC, 940 F.3d when and if it is acting within the scope of its congressionally delegated authority.”); Mozilla Corp. v. FCC, 940 F.3d
1, 75 (D.C. Cir. 2019) (“[I]n any area where the Commission lacks the authority to regulate, it equally lacks the power 1, 75 (D.C. Cir. 2019) (“[I]n any area where the Commission lacks the authority to regulate, it equally lacks the power
to preempt state law.”); Public Service Com’n of Maryland v. FCC, 909 F.2d 1510, (D.C. Cir. 1990) (“The FCC cannot to preempt state law.”); Public Service Com’n of Maryland v. FCC, 909 F.2d 1510, (D.C. Cir. 1990) (“The FCC cannot
regulate (let alone preempt state regulation of) any service that does not fall within its Title II jurisdiction over common regulate (let alone preempt state regulation of) any service that does not fall within its Title II jurisdiction over common
carrier services or its Title I jurisdiction over matters ‘incidental’ to communication by wire.”). carrier services or its Title I jurisdiction over matters ‘incidental’ to communication by wire.”).
9 47 U.S.C. § 152(b). 9 47 U.S.C. § 152(b).
10 AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 379–82 n.8 (1999) (rejecting the argument that 47 U.S.C. § 152(b) 10 AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 379–82 n.8 (1999) (rejecting the argument that 47 U.S.C. § 152(b)
prevents the FCC from issuing rules implementing Title II’s local competition provisions on the ground that Section prevents the FCC from issuing rules implementing Title II’s local competition provisions on the ground that Section
201(b) gives the FCC authority to “prescribe such rules and regulations as may be necessary in the public interest to 201(b) gives the FCC authority to “prescribe such rules and regulations as may be necessary in the public interest to
carry out the provisions of the Act,” but noting that, “[i]nsofar as Congress has remained silent . . . , § 152(b) continues carry out the provisions of the Act,” but noting that, “[i]nsofar as Congress has remained silent . . . , § 152(b) continues
to function” and the FCCto function” and the FCC could not “regulate any aspect of intrastate communicationcould not “regulate any aspect of intrastate communication . . . on the theory that it had an . . . on the theory that it had an
ancillary effect on matters within the Commission's primary jurisdiction.”). ancillary effect on matters within the Commission's primary jurisdiction.”).
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Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act

~~area.~~ For example, Section 332(c)(7) of the Act provides that state laws governing the placement, For example, Section 332(c)(7) of the Act provides that state laws governing the placement,
construction, and modification of “personal wireless service facilities” are only preempted to the construction, and modification of “personal wireless service facilities” are only preempted to the
extent the laws “prohibit or have the effect of prohibiting the provision of wireless services” or extent the laws “prohibit or have the effect of prohibiting the provision of wireless services” or
unreasonably discriminate among providers of services.11 Since this provision defines preemption unreasonably discriminate among providers of services.11 Since this provision defines preemption
in this area, the FCC may not preempt more broadly than what the provision allows.12 in this area, the FCC may not preempt more broadly than what the provision allows.12 ~~Lastly, the~~
The FCC’s preemption authority FCC’s preemption authority isalso is limited, in some cases, , in some cases, ~~limited~~ by a “clear statement” rule informed by by a “clear statement” rule informed by
federalism principles. In particular, courts have held that the Commission may not preempt state federalism principles. In particular, courts have held that the Commission may not preempt state
law in a manner that upsets the “usual constitutional balance” between states and the federal law in a manner that upsets the “usual constitutional balance” between states and the federal
government, absent a clear statement from Congress authorizing the preemption.13 government, absent a clear statement from Congress authorizing the preemption.13
The FCC’s ability to preempt state laws lies at the heart of many of its regulatory initiatives in The FCC’s ability to preempt state laws lies at the heart of many of its regulatory initiatives in
recent years, leading to conflict with state and local governments. In particular, preemption is at recent years, leading to conflict with state and local governments. In particular, preemption is at
the forefront of the Commission’s efforts to (1) remove net neutrality requirements, (2) maintain the forefront of the Commission’s efforts to (1) remove net neutrality requirements, (2) maintain
a deregulatory approach to Voice over Internet Protocol (VoIP) services, (3) accelerate a deregulatory approach to Voice over Internet Protocol (VoIP) services, (3) accelerate
deployment of fifth-generation wireless (5G) infrastructure, (4) facilitate municipal (or deployment of fifth-generation wireless (5G) infrastructure, (4) facilitate municipal (or
“community”) broadband, and (5) promote the provision of cable television and internet services. “community”) broadband, and (5) promote the provision of cable television and internet services.
~~First, preemption~~Preemption has played a notable role in the Commission’s deregulatory approach to net has played a notable role in the Commission’s deregulatory approach to net
neutrality, i.e., the concept that internet service providers should “treat internet traffic the same neutrality, i.e., the concept that internet service providers should “treat internet traffic the same
regardless of source.”14 In 2018, the FCC reversed a prior rule that had imposed a number of net regardless of source.”14 In 2018, the FCC reversed a prior rule that had imposed a number of net
neutrality requirements on broadband internet access service (BIAS) providers.15 In so doing, the neutrality requirements on broadband internet access service (BIAS) providers.15 In so doing, the
Commission reclassified BIAS from a Title II “telecommunications service” to a Title I Commission reclassified BIAS from a Title II “telecommunications service” to a Title I
“information service” no longer subject to its primary jurisdiction.16 To preserve its new “information service” no longer subject to its primary jurisdiction.16 To preserve its new
deregulatory policy, the Commission also preempted any state laws that would impose the deregulatory policy, the Commission also preempted any state laws that would impose the ~~same~~
net neutrality requirements.17 The U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit),18 requirements.17 The U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit),18 ~~however,~~
~~reversed~~invalidated the FCC’s blanket preemption.19 The court reasoned that because BIAS was now an the FCC’s blanket preemption.19 The court reasoned that because BIAS was now an
information service not subject to its regulatory jurisdiction, the Commission no longer had information service not subject to its regulatory jurisdiction, the Commission no longer had
affirmative regulatory authority to support the preemption.20 The court, nevertheless, held open affirmative regulatory authority to support the preemption.20 The court, nevertheless, held open
the possibility that the FCC could preempt state laws on a case-by-case basis under principles of the possibility that the FCC could preempt state laws on a case-by-case basis under principles of
conflict preemption.21 conflict preemption.21

11 47 U.S.C. § 332(c)(7)(B)(i). 11 47 U.S.C. § 332(c)(7)(B)(i).
12 12 See, e.g., City of Arlington, Tex. v. FCC, 668 F.3d 229, 250 (5th Cir. 2012) (stating that Section 332(c)(7)(A) , City of Arlington, Tex. v. FCC, 668 F.3d 229, 250 (5th Cir. 2012) (stating that Section 332(c)(7)(A)
“certainly prohibits the FCC from imposing restrictions or limitations that cannot be tied to the language of “certainly prohibits the FCC from imposing restrictions or limitations that cannot be tied to the language of
§ 332(c)(7)(B)”). § 332(c)(7)(B)”).
13 13 See, e.g., Nixon v. Missouri Municipal League, 541 U.S. 125, 140–41 (2004) (“[F]ederal legislation threatening to , Nixon v. Missouri Municipal League, 541 U.S. 125, 140–41 (2004) (“[F]ederal legislation threatening to
trench on the States’ arrangements for conducting their own governments should be treated with great skepticism, and trench on the States’ arrangements for conducting their own governments should be treated with great skepticism, and
read in a way that preserves a State’s chosen disposition of its own power, in the absence of the plain statement read in a way that preserves a State’s chosen disposition of its own power, in the absence of the plain statement
Gregory requires. . . . The want of any ‘unmistakably clear’ statement to that effect would be fatal to respondents’ requires. . . . The want of any ‘unmistakably clear’ statement to that effect would be fatal to respondents’
reading.”) (internal citations omitted). reading.”) (internal citations omitted).
14 U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 689 (D.C. Cir. 2016). 14 U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 689 (D.C. Cir. 2016).
15 In the Matter of Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 33 FCC Rcd. 311 15 In the Matter of Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 33 FCC Rcd. 311
(2018) [hereinafter 2018 Internet Order]. (2018) [hereinafter 2018 Internet Order].
16 16 Id. at 312–13, paras. 2–4. at 312–13, paras. 2–4.
17 17 Id. at 426–27, paras. 194, 195. at 426–27, paras. 194, 195.
18 References in this report to a particular circuit (e.g., the D.C. Circuit) refer to the U.S. Court of Appeals for that 18 References in this report to a particular circuit (e.g., the D.C. Circuit) refer to the U.S. Court of Appeals for that
circuit. circuit.
19 19 Mozilla Corp. v. FCC, 940 F.3d 1, 74 (D.C. Cir. 2019). , 940 F.3d 1, 74 (D.C. Cir. 2019).
20 20 Id. at 74–76. at 74–76.
21 21 Id. at 85. at 85.
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~~Second, the~~The Commission has preempted states’ regulation of VoIP services—i.e., services that Commission has preempted states’ regulation of VoIP services—i.e., services that
enable users to make voice calls via the Internet—when the services interface with the Public enable users to make voice calls via the Internet—when the services interface with the Public
Switched Telephone Network. Unlike net neutrality, the FCC has not made a determination on Switched Telephone Network. Unlike net neutrality, the FCC has not made a determination on
whether VoIP is a telecommunications service or an information service.22 Nevertheless, it has whether VoIP is a telecommunications service or an information service.22 Nevertheless, it has
relied on its ancillary authority to impose some requirements on these services, and it has sought relied on its ancillary authority to impose some requirements on these services, and it has sought
to preempt state laws that impose more stringent common-carrier regulations on VoIP services.23 to preempt state laws that impose more stringent common-carrier regulations on VoIP services.23
Courts thus far have upheld the FCC’s preemption of such state laws.24 Courts thus far have upheld the FCC’s preemption of such state laws.24
~~Third, the~~The Commission has used preemption to facilitate the rapid deployment of 5G service. In Commission has used preemption to facilitate the rapid deployment of 5G service. In
two orders issued in 2018, the Commission preempted state and local moratoria on deploying two orders issued in 2018, the Commission preempted state and local moratoria on deploying
telecommunications facilities25 and preempted certain requirements on deployment of small telecommunications facilities25 and preempted certain requirements on deployment of small
wireless facilities (e.g., 5G small cell sites, components of 5G infrastructure typically installed in wireless facilities (e.g., 5G small cell sites, components of 5G infrastructure typically installed in
large numbers and close together in densified areas to propagate high-frequency radio waves).26 large numbers and close together in densified areas to propagate high-frequency radio waves).26
Specifically, the second of these orders preempted the charging of excessive fees and Specifically, the second of these orders preempted the charging of excessive fees and
the imposition of unreasonable non-fee requirements, such as rules mandating that the small cell sites meet unreasonable non-fee requirements, such as rules mandating that the small cell sites meet
unreasonable aesthetic requirements.27 unreasonable aesthetic requirements.27 ~~It also placed~~This order also implemented “shot clocks” governing how long state and “shot clocks” governing how long state and
local governments local governments ~~could~~can take to review and respond to installation and construction take to review and respond to installation and construction
applications.28 In August 2020, the Ninth Circuit largely upheld these 2018 orders, vacating only applications.28 In August 2020, the Ninth Circuit largely upheld these 2018 orders, vacating only
the FCC’s standards on permissible aesthetic requirements.29 the FCC’s standards on permissible aesthetic requirements.29 ~~Several municipalities have sought~~
~~review of this decision in the Supreme Court.30~~ The FCC also issued a declaratory ruling in June The FCC also issued a declaratory ruling in June
2020 clarifying when state and local governments must approve requests to modify existing 2020 clarifying when state and local governments must approve requests to modify existing
wireless towers or base stations.wireless towers or base stations.3130 As with the 2018 orders, localities have challenged this As with the 2018 orders, localities have challenged this
declaratory ruling in the Ninth Circuit. declaratory ruling in the Ninth Circuit.
~~Additionally, the FCC~~The FCC also has sought, unsuccessfully, to preempt state laws that limit municipalities’ has sought, unsuccessfully, to preempt state laws that limit municipalities’
ability to provide broadband service. The Commission’s approach to state laws restricting ability to provide broadband service. The Commission’s approach to state laws restricting
community broadband has varied depending on the nature of the laws and has been the subject of community broadband has varied depending on the nature of the laws and has been the subject of
several court decisions. In a 2001 order, the FCC rejected petitions from cities asking it to several court decisions. In a 2001 order, the FCC rejected petitions from cities asking it to
preempt state laws imposing complete bans on municipally provided telecommunications preempt state laws imposing complete bans on municipally provided telecommunications
services, concluding that it did not have authority to constrain states’ control over their own services, concluding that it did not have authority to constrain states’ control over their own
governments without express authority from Congress.governments without express authority from Congress.3231 The Supreme Court upheld the The Supreme Court upheld the
Commission’s position in Commission’s position in Nixon v. Missouri Municipal League, in which the Court agreed the , in which the Court agreed the
agency could not preempt without a clear statutory statement.agency could not preempt without a clear statutory statement.3332 In 2015, however, the FCC In 2015, however, the FCC
preempted state laws preempted state laws in North Carolina and Tennessee that restricted the geographical area in which municipalities could offer that restricted the geographical area in which municipalities could offer
broadband.33 The Commission distinguished these laws from those at issue in Nixon by arguing
22 22 See infra “Voice over Internet Protocol (VoIP).”
23 23 Id.
24 24 Id.
25 Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd. 25 Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd.
7705 (2018) [hereinafter Moratorium Order]. 7705 (2018) [hereinafter Moratorium Order].
26 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd. 26 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd.
9088 (2018) [hereinafter Small Cell Order]. 9088 (2018) [hereinafter Small Cell Order].
27 27 Id. at 9091, paras. 11–12. at 9091, paras. 11–12.
28 28 Id. at 9093, para. 13. at 9093, para. 13.
29 City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020). 29 City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020).
30 30 ~~Pet. for Writ of Certiorari, City of Portland v. FCC, No. 20-1354 (U.S. Mar. 22, 2021).~~
31 Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification
Requests, 35 FCC Rcd. 5977 (2020) [hereinafter June 2020 Declaratory Ruling]. Requests, 35 FCC Rcd. 5977 (2020) [hereinafter June 2020 Declaratory Ruling].
3231 In the Matter of Missouri Municipal League, Mem. Op. and Order, 16 FCC Rcd. 1162, 1169 (2002). In the Matter of Missouri Municipal League, Mem. Op. and Order, 16 FCC Rcd. 1162, 1169 (2002).
3332 541 U.S. 125, 140–41 (2004). 541 U.S. 125, 140–41 (2004).
33 City of Wilson, N.C. Petition for Preemption of N.C. Gen. Stat. Sections 160A-340 et seq., 30 FCC Rcd. 2408 Congressional Research Service Congressional Research Service
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Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act

~~broadband.34 The Commission distinguished these laws from those at issue in Nixon by arguing~~
~~they~~the North Carolina and Tennessee laws dealt with the manner in which interstate commerce is conducted, rather than whether dealt with the manner in which interstate commerce is conducted, rather than whether
municipalities may be able to participate in such commerce in the first place.municipalities may be able to participate in such commerce in the first place.3534 However, in However, in
Tennessee v. FCC, the , the ~~Sixth Circuit~~U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit) vacated the Commission’s order. vacated the Commission’s order.3635 The court reasoned that The court reasoned that
even though these laws regulate interstate communications they still “implicat[ed] core attributes even though these laws regulate interstate communications they still “implicat[ed] core attributes
of state sovereignty” and, under the reasoning of of state sovereignty” and, under the reasoning of Nixon, the FCC could not preempt them., the FCC could not preempt them.3736
Lastly, the Lastly, the ~~Commission~~FCC has preempted state and local laws regulating cable television operators has preempted state and local laws regulating cable television operators
in a manner in a manner itthe Commission deems inconsistent with Title VI of the Act. Title VI expressly preserves state and deems inconsistent with Title VI of the Act. Title VI expressly preserves state and
local authority to regulate cable operators by requiring them to obtain an operating franchise from local authority to regulate cable operators by requiring them to obtain an operating franchise from
a state or local franchising authority.a state or local franchising authority.3837 Title VI places some limitations on this franchising Title VI places some limitations on this franchising
authority, however. For instance, it caps allowable franchise fees and prohibits state and local authority, however. For instance, it caps allowable franchise fees and prohibits state and local
authorities from unreasonably refusing to award a franchise.authorities from unreasonably refusing to award a franchise.3938 In a number of orders, the FCC has In a number of orders, the FCC has
laid out its view of these limitations and laid out its view of these limitations and has preempted state laws inconsistent with its preempted state laws inconsistent with its
interpretations.interpretations.~~40 Notably, the~~39 The FCC’s orders go beyond telling states the way in which they may FCC’s orders go beyond telling states the way in which they may
use the franchising process to regulate cable service. In a use the franchising process to regulate cable service. In a ~~2018~~2019 order, the FCC preempted any order, the FCC preempted any
state or local fee or requirement in connection with cable operators’ access to public rights of way state or local fee or requirement in connection with cable operators’ access to public rights of way
unless expressly allowed under Title VI, even if the fee or requirement relates to non-cable unless expressly allowed under Title VI, even if the fee or requirement relates to non-cable
services.services.41 40 This includes, the Commission explained, state or local fees or other requirements for This includes, the Commission explained, state or local fees or other requirements for
cable operators’ provision of broadband internet or other non-cable television services over public cable operators’ provision of broadband internet or other non-cable television services over public
rights of way.rights of way.~~42 State and local governments, however, have brought legal challenges to this order,~~
~~and it remains to be seen whether the Commission’s actions will be upheld.43~~
41 In May 2021, the Sixth Circuit largely upheld this order in City of Eugene v. FCC.42 This Report discusses This Report discusses each these issues in more detailthese issues in more detail below. It begins with an overview of the legal . It begins with an overview of the legal
framework governing the FCC’s preemption actions, first discussing general federal preemption framework governing the FCC’s preemption actions, first discussing general federal preemption
principles and then explaining the FCC’s preemption authority under the Communications Act. principles and then explaining the FCC’s preemption authority under the Communications Act.
The Report The Report ~~then~~next reviews recent FCC initiatives in which preemption plays reviews recent FCC initiatives in which preemption plays a key role, explaining~~a key role.~~
~~Specifically, it explains~~ how the FCC has exercised its preemption authority how the FCC has exercised its preemption authority— and the extent to and the extent to
which such authority has been challenged or is uncertainwhich such authority has been challenged or is uncertain~~—in areas such as net neutrality, 5G~~
~~infrastructure deployment, community broadband, and state and local regulation of cable~~
~~operators.~~

~~34 City of Wilson, N.C. Petition for Preemption of N.C. Gen. Stat. Sections 160A-340 et seq., 30 FCC Rcd. 2408~~
~~(2015).~~
~~35 Id. at 2412, 2472–74, paras. 12, 154–58.~~
~~36 832 F.3d 597 (6th Cir. 2016).~~
~~37 Id. at 611–13.~~
~~38 47 U.S.C. § 541.~~
~~39 Id. §§ 541, 542.~~
40. General Federal Preemption Principles The federal government’s preemption of state law is “rooted” in the U.S. Constitution’s Supremacy Clause.43 The Supremacy Clause states that the “Constitution, and the Laws of the (2015). 34 Id. at 2412, 2472–74, paras. 12, 154–58. 35 832 F.3d 597 (6th Cir. 2016). 36 Id. at 611–13. 37 47 U.S.C. § 541. 38 Id. §§ 541, 542. 39 For an in-depth discussion of these orders, see CRS Report R46147, For an in-depth discussion of these orders, see CRS Report R46147, The Cable Franchising Authority of State and
Local Governments and the Communications Act, by Chris D. Linebaugh and Eric N. Holmes. , by Chris D. Linebaugh and Eric N. Holmes.
4140 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, ~~MB Docket No. 05-311,~~
~~FCC 19-80, 2019 WL 3605129, at *33, para. 88 (adopted Aug. 1,~~ 34 FCC Rcd. 6844, 6892, para. 88 (2019) [hereinafter Third Order].2019) [hereinafter Third Order].
42 41 Id. at at *386900, para. 105. 42 998 F.3d 701 (6th Cir. 2021). 43 Metro. Edison Co. v. Pa. Pub. Util. Comm’n, 767 F.3d 335, 341 (3d Cir. 2014) (“The doctrine of federal pre-emption, in turn, is rooted in the Supremacy Clause of the Constitution . . . .”). Congressional Research Service 4 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act ~~, para. 105.~~
~~43 See City of Pittsburgh v. FCC, No. 19-3478 (3d Cir. Oct. 28, 2019); State of Hawaii v. United States, No. 19-72699~~
~~(9th Cir. Oct. 24, 2019); Anne Arundel Cty. v. FCC, No. 72760 (D.C. Cir. Oct. 24, 2019); All. for Commc’ns~~
~~Democracy v. FCC, No. 19-72736 (D.C. Cir. Oct. 23, 2019); Petition for Review, City of Portland v. United States, No.~~
~~19-72391 (9th Cir. Sept. 19, 2019); Pet. for Rev., City of Eugene v. FCC, No. 19-72219 (9th Cir. Aug. 30, 2019); City~~
~~of Eugene v. FCC, No. 19-72391 (9th Cir. Nov. 26, 2019) (order granting motion to consolidate petitions and transfer~~
~~petitions to the Sixth Circuit).~~
~~Congressional Research Service~~
4

~~Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act~~

~~General Federal Preemption Principles~~
~~The federal government’s preemption of state law is “rooted” in the U.S. Constitution’s~~
~~Supremacy Clause.44 The Supremacy Clause states that the “Constitution, and the Laws of the~~
United States which shall be made in Pursuance thereof,” shall be the “supreme Law of the Land” United States which shall be made in Pursuance thereof,” shall be the “supreme Law of the Land”
and that the “Judges in every State shall be bound thereby, any Thing in the Constitution or Laws and that the “Judges in every State shall be bound thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.”of any State to the Contrary notwithstanding.”4544 Under the Supremacy Clause, Congress has the Under the Supremacy Clause, Congress has the
power to displace state law when it is acting pursuant to its enumerated constitutional powers.power to displace state law when it is acting pursuant to its enumerated constitutional powers.4645
As the Supreme Court has explained, federal law may preempt state law in one of three ways.As the Supreme Court has explained, federal law may preempt state law in one of three ways.4746
First, federal law may First, federal law may expressly preempt state law by stating which state laws are preempted. preempt state law by stating which state laws are preempted.4847
Second, federal law preempts any Second, federal law preempts any conflicting state law. Such conflict preemption occurs when state law. Such conflict preemption occurs when
either (1) “compliance with both federal and state regulations is a physical impossibility” or (2) either (1) “compliance with both federal and state regulations is a physical impossibility” or (2)
the “challenged state law stands as an obstacle to the accomplishment and execution of the full the “challenged state law stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.”purposes and objectives of Congress.”4948 Lastly, federal law may preempt an entire Lastly, federal law may preempt an entire field of state of state
regulation by occupying that field “so comprehensively that it has left no room for supplementary regulation by occupying that field “so comprehensively that it has left no room for supplementary
state legislation.”state legislation.”5049
The Supreme Court has also explained that regulations adopted by federal agencies “have no less The Supreme Court has also explained that regulations adopted by federal agencies “have no less
preemptive effect” than statutes themselves.preemptive effect” than statutes themselves.5150 While the “purpose of Congress” is the “ultimate While the “purpose of Congress” is the “ultimate
touchstone” in any preemption analysis, whether by statute or regulation,touchstone” in any preemption analysis, whether by statute or regulation,5251 agencies generally do agencies generally do
not need “express congressional authorization” to preempt state law.not need “express congressional authorization” to preempt state law.5352 Rather, the Supreme Court Rather, the Supreme Court
has said that when an agency promulgates regulations intending to preempt state law, the Court has said that when an agency promulgates regulations intending to preempt state law, the Court
will uphold the preemption unless the agency “exceeded [its] statutory authority or acted will uphold the preemption unless the agency “exceeded [its] statutory authority or acted
arbitrarily.”arbitrarily.”5453 Nevertheless, in some circumstances, the Court has required a plain statement from Nevertheless, in some circumstances, the Court has required a plain statement from

~~44 Metro. Edison Co. v. Pa. Pub. Util. Comm’n, 767 F.3d 335, 341 (3d Cir. 2014) (“The doctrine of federal pre-~~
~~emption, in turn, is rooted in the Supremacy Clause of the Constitution . . . .”).~~
~~45 U.S. CONST. art. VI, cl. 2.~~
46Congress authorizing the preemption. In particular, the Court has said that Congress must be “unmistakably clear in the language of the statute” if it intends to preempt state law in a way that would upset the “usual constitutional balance” between states and the federal government.54 The 44 U.S. CONST. art. VI, cl. 2. 45 City of New York v. FCC, 486 U.S. 57, 63 (1988) (“When the Federal Government acts within the authority it City of New York v. FCC, 486 U.S. 57, 63 (1988) (“When the Federal Government acts within the authority it
possesses under the Constitution, it is empowered to pre-empt state laws to the extent it is believed that such action is possesses under the Constitution, it is empowered to pre-empt state laws to the extent it is believed that such action is
necessary to achieve its purposes.”); Chicago and N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 necessary to achieve its purposes.”); Chicago and N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317
(1981) (“But when Congress has chosen to legislate pursuant to its constitutional powers, then a court must find local (1981) (“But when Congress has chosen to legislate pursuant to its constitutional powers, then a court must find local
law pre-empted by federal regulation whenever the ‘challenged state statute “stands an obstacle to the accomplishment law pre-empted by federal regulation whenever the ‘challenged state statute “stands an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.”’”) (quoting Perez v. Campbell, 402 U.S. 637, 649 and execution of the full purposes and objectives of Congress.”’”) (quoting Perez v. Campbell, 402 U.S. 637, 649
(1971)); Oxygenated Fuels Ass’n Inc. v. Davis, 331 F.3d 665, 667 (9th Cir. 2003) (“Congress has the authority, when (1971)); Oxygenated Fuels Ass’n Inc. v. Davis, 331 F.3d 665, 667 (9th Cir. 2003) (“Congress has the authority, when
acting pursuant to its enumerated powers, to preempt state and local laws.”). acting pursuant to its enumerated powers, to preempt state and local laws.”).
4746 Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1480 (2018) (“Our cases have identified three different Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1480 (2018) (“Our cases have identified three different
types of preemption—‘conflict,’ ‘express,’ and ‘field’ . . . .”). types of preemption—‘conflict,’ ‘express,’ and ‘field’ . . . .”).
4847 See, e.g., Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (2011) (“When a federal law contains an express , Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (2011) (“When a federal law contains an express
preemption clause, we ‘focus on the plain wording of the clause, which necessarily contains the best evidence of preemption clause, we ‘focus on the plain wording of the clause, which necessarily contains the best evidence of
Congress’ preemptive intent.’”) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)). Congress’ preemptive intent.’”) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)).
4948 Arizona v. United States, 567 U.S. 387, 399 (2012) (internal quotations and citations omitted). Arizona v. United States, 567 U.S. 387, 399 (2012) (internal quotations and citations omitted).
5049 Murphy, 138 S. Ct. at 1480 (quoting R.J. Reynolds Tobacco Co. v. Durham Cty., 479 U.S. 130, 140 (1986)). , 138 S. Ct. at 1480 (quoting R.J. Reynolds Tobacco Co. v. Durham Cty., 479 U.S. 130, 140 (1986)).
5150 Fidelity Federal Sav. and Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982). Fidelity Federal Sav. and Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982).
5251 Wyeth v. Levine, 555 U.S. 555, 565 (2009). Wyeth v. Levine, 555 U.S. 555, 565 (2009).
5352 Id. at 154; at 154; see also City of New York v. FCC, 486 U.S. 57, 64 (1988). City of New York v. FCC, 486 U.S. 57, 64 (1988).
5453 de la Cuesta, 458 U.S. at 154; , 458 U.S. at 154; see also City of New York, 486 U.S. at 64 (“[I]n a situation where state law is claimed , 486 U.S. at 64 (“[I]n a situation where state law is claimed
to be preempted by federal regulation, a narrow focus on Congress’ intent to supersede state law is misdirected, for a to be preempted by federal regulation, a narrow focus on Congress’ intent to supersede state law is misdirected, for a
preemptive regulation’s force does not depend on express congressional authorization to displace state law. Instead, the preemptive regulation’s force does not depend on express congressional authorization to displace state law. Instead, the
correct focus is on the federal agency that seeks to displace state law and on the proper bounds of its lawful authority to correct focus is on the federal agency that seeks to displace state law and on the proper bounds of its lawful authority to
undertake such action.”) (internal citations and quotations omitted). undertake such action.”) (internal citations and quotations omitted).
~~Congressional Research Service~~
5

~~Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act~~

~~Congress authorizing the preemption. In particular, the Court has said that Congress must be~~
~~“unmistakably clear in the language of the statute” if it intends to preempt state law in a way that~~
~~would upset the “usual constitutional balance” between states and the federal government.55 The~~
54 Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)). Congressional Research Service 5 link to page 16 link to page 16 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act Court has applied this clear statement rule, for instance, to preemption that would infringe on Court has applied this clear statement rule, for instance, to preemption that would infringe on
states’ management of their own officers and subdivisions.states’ management of their own officers and subdivisions.5655
Overview of the FCC’s Preemption Authority Under
the Communications Act
As with other federal agencies, the FCC generally may enact regulations that preempt state law as As with other federal agencies, the FCC generally may enact regulations that preempt state law as
long as it does not “exceed[] its statutory authority” under the Communications Act or act long as it does not “exceed[] its statutory authority” under the Communications Act or act
arbitrarily. While straightforward in principle, determining whether a preemptive action exceeds arbitrarily. While straightforward in principle, determining whether a preemptive action exceeds
the FCC’s statutory authority is a complex question that generally depends on two factors: the FCC’s statutory authority is a complex question that generally depends on two factors:
(1) whether the Commission has jurisdictional authority over the area of law it seeks to preempt, (1) whether the Commission has jurisdictional authority over the area of law it seeks to preempt,
and (2) whether any specific provisions in the Communications Act limit or define its preemptive and (2) whether any specific provisions in the Communications Act limit or define its preemptive
authority over that area. If the Commission has jurisdiction over an area, it may generally authority over that area. If the Commission has jurisdiction over an area, it may generally
preempt state laws as long as it does not run afoul of any specific provisions that limit or define preempt state laws as long as it does not run afoul of any specific provisions that limit or define
its preemption authority.its preemption authority.5756 There are some exceptions to this general rule, however. For instance, There are some exceptions to this general rule, however. For instance,
Courts have required a plain statement from Congress before allowing the FCC to preempt in a Courts have required a plain statement from Congress before allowing the FCC to preempt in a
manner that upsets the “usual constitutional balance” between states and the federal government. manner that upsets the “usual constitutional balance” between states and the federal government.
These issues are discussed further below. These issues are discussed further below.
The FCC’s Jurisdictional Authority
The Supreme Court and lowerThe Supreme Court and lower federal courts have recognized that, as a general matter, the FCC may only courts have recognized that, as a general matter, the FCC may only
preempt state laws in areas where it has statutory authority to regulate.preempt state laws in areas where it has statutory authority to regulate.~~58 Consequently,~~

~~55 Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242~~
~~(1985)).~~
5657 The Supreme Court has explained that the FCC’s regulatory jurisdiction takes two forms: its “primary 55 Id. (“Congressional interference with this decision of the people of Missouri, defining their constitutional officers, (“Congressional interference with this decision of the people of Missouri, defining their constitutional officers,
would upset the usual constitutional balance of federal and state powers. For this reason, it is incumbent upon the would upset the usual constitutional balance of federal and state powers. For this reason, it is incumbent upon the
federal courts to be certain of Congress’ intent before finding that federal law overrides this balance.”) (internal federal courts to be certain of Congress’ intent before finding that federal law overrides this balance.”) (internal
citations and quotations omitted); Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004) (“[T]he liberating preemption citations and quotations omitted); Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004) (“[T]he liberating preemption
would come only by interposing federal authority between a State and its municipal subdivisions . . . . Hence the need would come only by interposing federal authority between a State and its municipal subdivisions . . . . Hence the need
to invoke our working assumption that federal legislation threatening to trench on the States’ arrangements for to invoke our working assumption that federal legislation threatening to trench on the States’ arrangements for
conducting their own governments should be treated with great skepticism, and read in a way that preserves a State’s conducting their own governments should be treated with great skepticism, and read in a way that preserves a State’s
chosen disposition of its own power, in the absence of the plain statement chosen disposition of its own power, in the absence of the plain statement Gregory requires.”). requires.”).
5756 See United States v. Shimer, 367 U.S. 374, 383 (1961) (declining to disturb an agency’s preemption decision “unless United States v. Shimer, 367 U.S. 374, 383 (1961) (declining to disturb an agency’s preemption decision “unless
it appears from the statute or its legislative history that the accommodation is not one that Congress would have it appears from the statute or its legislative history that the accommodation is not one that Congress would have
sanctioned.”). sanctioned.”).
5857 See City of New York, 486 U.S. at 63–64, 66;, 486 U.S. at 63–64, 66; La. Pub. Serv. Comm’n v. FCC, 476 U.S 355, 374 (1986) (“[A] federal La. Pub. Serv. Comm’n v. FCC, 476 U.S 355, 374 (1986) (“[A] federal
agency may preempt state law only when and if it is acting within the scope of its congressionally delegated agency may preempt state law only when and if it is acting within the scope of its congressionally delegated
authority.”); Mozilla Corp. v. FCC, 940 F.3d 1, 75 (D.C. Cir. 2019) (“[I]n any area where the Commission lacks the authority.”); Mozilla Corp. v. FCC, 940 F.3d 1, 75 (D.C. Cir. 2019) (“[I]n any area where the Commission lacks the
authority to regulate, it equally lacks the power to preempt state law.”); Pub. Serv. Comm’n v. FCC, 909 F.2d 1510, authority to regulate, it equally lacks the power to preempt state law.”); Pub. Serv. Comm’n v. FCC, 909 F.2d 1510,
1515 n.6 (D.C. Cir. 1990) (“The FCC cannot regulate (let alone preempt state regulation of) any service that does not 1515 n.6 (D.C. Cir. 1990) (“The FCC cannot regulate (let alone preempt state regulation of) any service that does not
fall within its Title II jurisdiction over common carrier services or its Title I jurisdiction over matters ‘incidental’ to fall within its Title II jurisdiction over common carrier services or its Title I jurisdiction over matters ‘incidental’ to
communication by wire.”). As the D.C. Circuit recently explained, Congress may give the Commission preemption communication by wire.”). As the D.C. Circuit recently explained, Congress may give the Commission preemption
authority even in an area where it has no regulatory authority. authority even in an area where it has no regulatory authority. Mozilla Corp., 940 F.3d at 75 (“Of course, if a federal , 940 F.3d at 75 (“Of course, if a federal
law expressly confers upon the agency the authority to preempt, that legislative delegation creates and defines the law expressly confers upon the agency the authority to preempt, that legislative delegation creates and defines the
agency’s power to displace state laws.”). While the majority maintained that Congress had to grant express preemption agency’s power to displace state laws.”). While the majority maintained that Congress had to grant express preemption
authority beyond the Commission’s regulatory authority, the dissent in this case argued that such a grant of preemption authority beyond the Commission’s regulatory authority, the dissent in this case argued that such a grant of preemption
~~Congressional Research Service~~
6

~~link to page 16 link to page 16~~ authority could be implicit. See id. at 101 (Williams, J., dissenting) (“The same principle undergirds a congressional choice (express or implied) to grant an agency equivalent preemptive authority without any parallel federal regulation (by Congress or a federal agency).”). See infra “ Mozilla Corp. v. FCC” for a further discussion of this case. Congressional Research Service 6 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act

~~understanding~~jurisdiction” and its “ancillary jurisdiction.”58 Understanding the scope of the FCC’s regulatory jurisdiction is critical to understanding its the scope of the FCC’s regulatory jurisdiction is critical to understanding its
~~preemption power. The Supreme Court has explained that the FCC’s regulatory jurisdiction takes~~
~~two forms: its “primary jurisdiction” and its “ancillary jurisdiction.”59~~ preemption power. The FCC’s primary The FCC’s primary
jurisdiction involves the “express and expansive authority” that the Communications Act jurisdiction involves the “express and expansive authority” that the Communications Act
expressly grants the FCC over “certain technologies.”expressly grants the FCC over “certain technologies.”6059 In particular, different titles of the Act In particular, different titles of the Act
give the FCC “express and expansive authority” to regulate: (1) “telecommunications services,” give the FCC “express and expansive authority” to regulate: (1) “telecommunications services,”
such as landline telephone services, as common carriers (such as landline telephone services, as common carriers (~~under Title II of the Act);61~~Title II);60 (2) “radio (2) “radio
transmissions, including broadcast television, radio, and cellular telephony” (transmissions, including broadcast television, radio, and cellular telephony” (~~under Title III of the~~
~~Act);62~~Title III);61 and (3) “cable services, including cable television” ( and (3) “cable services, including cable television” (~~under~~ Title VITitle VI ~~of the Act).63~~).62 These These
titles contain detailed provisions expressly setting forth the nature and scope of the FCC’s titles contain detailed provisions expressly setting forth the nature and scope of the FCC’s
authority. Title II, for instance, contains a host of requirements that apply to common carriers—authority. Title II, for instance, contains a host of requirements that apply to common carriers—
such as requiring that they charge “just and reasonable rates,” refrain from unreasonable such as requiring that they charge “just and reasonable rates,” refrain from unreasonable
discrimination, and allow other carriers to interconnect with their networks—while giving the discrimination, and allow other carriers to interconnect with their networks—while giving the
FCC discretion to “forbear” from applying Title II requirements consistent with the public FCC discretion to “forbear” from applying Title II requirements consistent with the public
interest.interest.6463 Title III, as another example, provides that, among other things, the Commission may Title III, as another example, provides that, among other things, the Commission may
classify radio stations, prescribe the services rendered by such stations, regulate the apparatus classify radio stations, prescribe the services rendered by such stations, regulate the apparatus
used in radio communications, and issue licenses to operators of radio stations.used in radio communications, and issue licenses to operators of radio stations.65
~~In addition to the Commission’s primary jurisdiction, the~~64 The Supreme Court has also recognized that the FCC Court has also recognized that the FCC
may regulate under its “ancillary jurisdiction.”may regulate under its “ancillary jurisdiction.”6665 For the FCC to use its ancillary jurisdiction, For the FCC to use its ancillary jurisdiction,
“two conditions must be met”: (1) “the subject of the regulation” must fall under the “two conditions must be met”: (1) “the subject of the regulation” must fall under the
Commission’s “general grant of jurisdiction” under Title I of the Communications Act,Commission’s “general grant of jurisdiction” under Title I of the Communications Act,6766 which which
covers “all interstate and foreign communication by wire or radio”; and (2) the subject of the covers “all interstate and foreign communication by wire or radio”; and (2) the subject of the
regulation must be “reasonably ancillary” to the “effective performance” of its primary regulation must be “reasonably ancillary” to the “effective performance” of its primary

~~authority could be implicit. See id. at 101 (Williams, J., dissenting) (“The same principle undergirds a congressional~~
~~choice (express or implied) to grant an agency equivalent preemptive authority without any parallel federal regulation~~
~~(by Congress or a federal agency).”). See infra “~~
~~Mozilla Corp. v. FCC” for a further discussion of this case.~~
59jurisdictional responsibilities.67 Where its 58 AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 380–81 (1999) (“For even though ‘Commission jurisdiction’ always 380–81 (1999) (“For even though ‘Commission jurisdiction’ always
follows where the Act ‘applies,’ Commission jurisdiction (so-called ‘ancillary’ jurisdiction) could exist even where the follows where the Act ‘applies,’ Commission jurisdiction (so-called ‘ancillary’ jurisdiction) could exist even where the
Act does not ‘apply.’ The term ‘apply’ limits the substantive reach of the statute (and the concomitant scope of primary Act does not ‘apply.’ The term ‘apply’ limits the substantive reach of the statute (and the concomitant scope of primary
FCC jurisdiction), and the phrase ‘or to give the Commission jurisdiction’ limits, in addition, the FCCFCC jurisdiction), and the phrase ‘or to give the Commission jurisdiction’ limits, in addition, the FCC'’s ancillary s ancillary
jurisdiction.”). jurisdiction.”).
6059 Mozilla Corp., 940 F.3d at 75. , 940 F.3d at 75.
6160 47 U.S.C. §§, 153, 301–399b; Comcast Corp. v. FCC, 600 F.3d 642, 645 (D.C. Cir. 2010) (“Congress has given the 47 U.S.C. §§, 153, 301–399b; Comcast Corp. v. FCC, 600 F.3d 642, 645 (D.C. Cir. 2010) (“Congress has given the
Commission express and expansive authority to regulate common carrier services, including landline telephony [under Commission express and expansive authority to regulate common carrier services, including landline telephony [under
Title II].”). Title II].”).
6261 47 U.S.C. §§ 301–399b; 47 U.S.C. §§ 301–399b; Comcast, 600 F.3d at 645. , 600 F.3d at 645.
6362 47 U.S.C. §§ 521–573; 47 U.S.C. §§ 521–573; Comcast, 600 F.3d at 645. , 600 F.3d at 645.
6463 47 U.S.C. §§ 160(a), 201(b), 202(a), 251(a). 47 U.S.C. §§ 160(a), 201(b), 202(a), 251(a).
6564 Id. §§ 303, 307; National Ass’n For Better Broadcasting v. FCC, 849 F.2d 665, 666 (D.C. Cir. 1988) (“Title III of the §§ 303, 307; National Ass’n For Better Broadcasting v. FCC, 849 F.2d 665, 666 (D.C. Cir. 1988) (“Title III of the
Act establishes a broad grant of authority to the Commission to regulate radio (and television) communications Act establishes a broad grant of authority to the Commission to regulate radio (and television) communications
including classification of stations, prescription of the nature of services to be rendered, regulation of the apparatus including classification of stations, prescription of the nature of services to be rendered, regulation of the apparatus
used, study of new uses and encouragement of more and effective uses of radio, and ultimately the issuance of licenses used, study of new uses and encouragement of more and effective uses of radio, and ultimately the issuance of licenses
to operate stations when it finds that the public interest will be served thereby.”). to operate stations when it finds that the public interest will be served thereby.”).
6665 See, e.g., U.S. v. Sw. Cable Co., 392 U.S. 157, 178 (1968); U.S. v. Midwest Video Corp., 406 U.S. 649, 650 (1972). , U.S. v. Sw. Cable Co., 392 U.S. 157, 178 (1968); U.S. v. Midwest Video Corp., 406 U.S. 649, 650 (1972).
6766 See 47 U.S.C. § 152(a) (“The provisions of this chapter shall apply to all interstate and foreign communication by 47 U.S.C. § 152(a) (“The provisions of this chapter shall apply to all interstate and foreign communication by
wire or radio and all interstate and foreign transmission of energy by radio, which originates and/or is received within wire or radio and all interstate and foreign transmission of energy by radio, which originates and/or is received within
the United States, and to all persons engaged within the United States in such communication or such transmission of the United States, and to all persons engaged within the United States in such communication or such transmission of
energy by radio, and to the licensing and regulating of all radio stations as hereinafter provided . . . .”). energy by radio, and to the licensing and regulating of all radio stations as hereinafter provided . . . .”).
67 American Library Ass’n v. FCC, 406 F.3d 689, 693 (D.C. Cir. 2005); see also S.W. Cable Co., 392 U.S. at 178 (“[T]he authority which we recognize today under § 152(a) is restricted to that reasonably ancillary to the effective performance of the Commission’s various responsibilities for the regulation of television broadcasting. The Commission may, for these purposes, issue ‘such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law,’ as ‘public convenience, interest, or necessity requires.’”); U.S. v. Midwest Video Corp., 406 U.S. at 650) (“In [Southwestern Cable], . . . we sustained the jurisdiction of the Federal Communications Commission Congressional Research Service Congressional Research Service
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Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act

~~jurisdictional responsibilities.68 Where its~~ primary or ancillary jurisdiction applies, the FCC has primary or ancillary jurisdiction applies, the FCC has
authority to “prescribe such rules and regulations” that “may be necessary in the execution of its authority to “prescribe such rules and regulations” that “may be necessary in the execution of its
functions” and are not “inconsistent with [the Communications Act].”functions” and are not “inconsistent with [the Communications Act].”6968
The Commission’s ancillary jurisdiction is limited, however, by Section 2(b) of the Act. Section The Commission’s ancillary jurisdiction is limited, however, by Section 2(b) of the Act. Section
2(b) says that, except for several specific exceptions, “nothing [in the Act] shall be construed to 2(b) says that, except for several specific exceptions, “nothing [in the Act] shall be construed to
apply or to give the Commission jurisdiction with respect to . . . charges, classifications, apply or to give the Commission jurisdiction with respect to . . . charges, classifications,
practices, services, facilities, or regulations for or in connection with intrastate communication practices, services, facilities, or regulations for or in connection with intrastate communication
service.”service.”7069 The Supreme Court has explained that, while this section does not limit the FCC’s The Supreme Court has explained that, while this section does not limit the FCC’s
regulatory authority where the Act expressly applies (i.e., its primary jurisdiction), it does carve regulatory authority where the Act expressly applies (i.e., its primary jurisdiction), it does carve
out intrastate matters from the Commission’s ancillary jurisdiction.out intrastate matters from the Commission’s ancillary jurisdiction.7170 However, the Court has also However, the Court has also
suggested (without expressly deciding) that Section 2(b)’s limitation does not apply when it is suggested (without expressly deciding) that Section 2(b)’s limitation does not apply when it is
“not possible to separate the interstate and the intrastate components of the asserted FCC “not possible to separate the interstate and the intrastate components of the asserted FCC
regulation.”regulation.”7271 Lower courts have fleshed out this “impossibility exception” further. These cases Lower courts have fleshed out this “impossibility exception” further. These cases
generally hold that Section 2(b) does not prevent the Commission from preempting state law generally hold that Section 2(b) does not prevent the Commission from preempting state law
where: (1) “the matter to be regulated has both interstate and intrastate aspects”; (2) “preemption where: (1) “the matter to be regulated has both interstate and intrastate aspects”; (2) “preemption
is necessary to protect a valid federal regulatory objective”; and (3) “state regulation would is necessary to protect a valid federal regulatory objective”; and (3) “state regulation would
negate the exercise by the [Commission] of its own lawful authority because regulation of the negate the exercise by the [Commission] of its own lawful authority because regulation of the
interstate aspects of the matter cannot be ‘unbundled’ from regulation of the intrastate aspects.”interstate aspects of the matter cannot be ‘unbundled’ from regulation of the intrastate aspects.”73

~~68 American Library Ass’n v. FCC, 406 F.3d 689, 693 (D.C. Cir. 2005); see also S.W. Cable Co., 392 U.S. at 178~~
~~(“[T]he authority which we recognize today under § 152(a) is restricted to that reasonably ancillary to the effective~~
~~performance of the Commission’s various responsibilities for the regulation of television broadcasting. The~~
~~Commission may, for these purposes, issue ‘such rules and regulations and prescribe such restrictions and conditions,~~
~~not inconsistent with law,’ as ‘public convenience, interest, or necessity requires.’”); U.S. v. Midwest Video Corp., 406~~
~~U.S. at 650) (“In [Southwestern Cable], . . . we sustained the jurisdiction of the Federal Communications Commission~~
72 Specific Statutory Provisions Addressing Preemption Even when the FCC has jurisdictional authority, its preemption must be consistent with any express preemption provisions in the Communications Act. In a number of areas, the Act explicitly spells out the extent to which states’ regulatory authority over a particular technology or to regulate the new industry, at least to the extent ‘reasonably ancillary to the effective performance of the to regulate the new industry, at least to the extent ‘reasonably ancillary to the effective performance of the
Commission’s various responsibilities for the regulation of television broadcasting’ . . . .”). Commission’s various responsibilities for the regulation of television broadcasting’ . . . .”).
6968 47 U.S.C 47 U.S.C. § 154(i) (“The Commission may perform any and all acts, make such rules and regulations, and issue such § 154(i) (“The Commission may perform any and all acts, make such rules and regulations, and issue such
orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”); orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”); see also EchoStar EchoStar
Satellite L.L.C. v. FCC, 704 F.3d 992, 998 (D.C. Cir. 2013) (applying Section 4(i) of the Communications Act to the Satellite L.L.C. v. FCC, 704 F.3d 992, 998 (D.C. Cir. 2013) (applying Section 4(i) of the Communications Act to the
FCC’s ancillary jurisdiction). FCC’s ancillary jurisdiction).
7069 47 U.S.C. § 152(b). 47 U.S.C. § 152(b).
7170 AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 379–82 n.8 (1999) (rejecting the argument that Section 2(b) prevents AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 379–82 n.8 (1999) (rejecting the argument that Section 2(b) prevents
the FCC from issuing rules implementing Title II’s local competition provisions on the ground that Section 201(b) the FCC from issuing rules implementing Title II’s local competition provisions on the ground that Section 201(b)
gives the FCC authority to “prescribe such rules and regulations as may be necessary in the public interest to carry out gives the FCC authority to “prescribe such rules and regulations as may be necessary in the public interest to carry out
the provisions of the Act,” but noting that “[i]nsofar as Congress has remained silent, . . . , § 152(b) continues to the provisions of the Act,” but noting that “[i]nsofar as Congress has remained silent, . . . , § 152(b) continues to
function” and the FCCfunction” and the FCC could not “regulate any aspect of intrastate communicationcould not “regulate any aspect of intrastate communication . . . on the theory that it had an . . . on the theory that it had an
ancillary effect on matters within the Commission’s primary jurisdiction.”). ancillary effect on matters within the Commission’s primary jurisdiction.”).
7271 La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 375 n.4 (1986) (distinguishing cases where lower courts held it was La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 375 n.4 (1986) (distinguishing cases where lower courts held it was
““not possible to separate the interstate and the intrastate components of the asserted FCC regulation.”) (emphasis in the possible to separate the interstate and the intrastate components of the asserted FCC regulation.”) (emphasis in the
original). original).
7372 Mozilla Corp. v. FCC, 940 F.3d 1, 77–78 (D.C. Cir. 2019); California v. FCC, 905 F.2d 1217, 1243 (9th Cir. 1990) Mozilla Corp. v. FCC, 940 F.3d 1, 77–78 (D.C. Cir. 2019); California v. FCC, 905 F.2d 1217, 1243 (9th Cir. 1990)
(“The impossibility exception, however, is a limited one. The FCC may not justify a preemption order merely by (“The impossibility exception, however, is a limited one. The FCC may not justify a preemption order merely by
showing that some of the preempted state regulation would, if not preempted, frustrate FCC regulatory goals. Rather, showing that some of the preempted state regulation would, if not preempted, frustrate FCC regulatory goals. Rather,
the FCC bears the burden of justifying its entire preemption order by demonstrating that the order is narrowly tailored the FCC bears the burden of justifying its entire preemption order by demonstrating that the order is narrowly tailored
to preempt only such state regulations as would negate valid FCC regulatory goals.”); Minn. Pub. Utils. Comm’n v. to preempt only such state regulations as would negate valid FCC regulatory goals.”); Minn. Pub. Utils. Comm’n v.
FCC, 483 F.3d 570, 578 (8th Cir. 2007) (“[T]he “impossibility exception” of 47 U.S.C. § 152(b) allows the FCC to FCC, 483 F.3d 570, 578 (8th Cir. 2007) (“[T]he “impossibility exception” of 47 U.S.C. § 152(b) allows the FCC to
preempt state regulation of a service if (1) it is not possible to separate the interstate and intrastate aspects of the preempt state regulation of a service if (1) it is not possible to separate the interstate and intrastate aspects of the
service, and (2) federal regulation is necessary to further a valid federal regulatory objective, i.e., state regulation would service, and (2) federal regulation is necessary to further a valid federal regulatory objective, i.e., state regulation would
conflict with federal regulatory policies.”) (citing Qwest Corp. v. Scott, 380 F.3d 367, 372 (8th Cir. 2004)). conflict with federal regulatory policies.”) (citing Qwest Corp. v. Scott, 380 F.3d 367, 372 (8th Cir. 2004)).
Congressional Research Service Congressional Research Service
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Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act

~~Specific Statutory Provisions Addressing Preemption~~
~~Even when the FCC has jurisdictional authority, its preemption must be consistent with any~~
~~express preemption provisions in the Communications Act. In a number of areas, the Act~~
~~explicitly spells out the extent to which states’ regulatory authority over a particular technology or~~
service is displaced or preserved. Where such provisions apply, the Commission may not preempt service is displaced or preserved. Where such provisions apply, the Commission may not preempt
state laws beyond what the statute allows.state laws beyond what the statute allows.7473
For example, Section 332(c)(7) of the Act (under Title III) defines the extent of states’ regulatory For example, Section 332(c)(7) of the Act (under Title III) defines the extent of states’ regulatory
authority over “personal wireless services.” In particular, Section 332(c)(7)(B) provides that state authority over “personal wireless services.” In particular, Section 332(c)(7)(B) provides that state
or local regulations governing the “placement, construction, and modification of personal or local regulations governing the “placement, construction, and modification of personal
wireless services facilities . . . (I) shall not unreasonably discriminate among providers of wireless services facilities . . . (I) shall not unreasonably discriminate among providers of
functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the
provision of personal wireless services.”provision of personal wireless services.”7574 However, Section 332(c)(7)(A) provides that, other However, Section 332(c)(7)(A) provides that, other
than Section 332(c)(7)(B)’s express limitations, nothing “shall limit or affect the authority of a than Section 332(c)(7)(B)’s express limitations, nothing “shall limit or affect the authority of a
State or local government or instrumentality thereof over decisions regarding the placement, State or local government or instrumentality thereof over decisions regarding the placement,
construction, and modification of personal wireless service facilities.”construction, and modification of personal wireless service facilities.”7675 Circuit courts have held Circuit courts have held
that the FCC may implement Section 332(c)(7)(B)’s limitations by clarifying the extent to which that the FCC may implement Section 332(c)(7)(B)’s limitations by clarifying the extent to which
state laws are preempted by this section; however, in doing so, the Commission may not impose state laws are preempted by this section; however, in doing so, the Commission may not impose
restrictions or limitations that “cannot be tied to the language of § 332(c)(7)(B).”restrictions or limitations that “cannot be tied to the language of § 332(c)(7)(B).”7776
Similarly, Section 253 of the Act (under Title II) defines the FCC’s preemption authority over Similarly, Section 253 of the Act (under Title II) defines the FCC’s preemption authority over
state laws regulating telecommunication services. It provides that “no State or local statute or state laws regulating telecommunication services. It provides that “no State or local statute or
regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting
the ability of any entity to provide any interstate or intrastate telecommunications service.”the ability of any entity to provide any interstate or intrastate telecommunications service.”7877
Section 253 further states that if the FCC determines that any state or local requirement violates Section 253 further states that if the FCC determines that any state or local requirement violates
this provision, it “shall,” after notice and an opportunity for public comment, “preempt the this provision, it “shall,” after notice and an opportunity for public comment, “preempt the
enforcement of such statute, regulation, or legal requirement to the extent necessary to correct enforcement of such statute, regulation, or legal requirement to the extent necessary to correct
such violation or inconsistency.”such violation or inconsistency.”7978 However, similar to Section 322(c)(7)(A), Section 253 also However, similar to Section 322(c)(7)(A), Section 253 also
preserves a sphere of state and local authority, providing that “[n]othing in this section affects the preserves a sphere of state and local authority, providing that “[n]othing in this section affects the
authority of a State or local government to manage the public rights-of-way or to require fair and authority of a State or local government to manage the public rights-of-way or to require fair and
reasonable compensation from telecommunications providers, on a competitively neutral and reasonable compensation from telecommunications providers, on a competitively neutral and
nondiscriminatory basis.”nondiscriminatory basis.”8079
Other parts of the Communications Act define in even greater detail the bounds of state authority Other parts of the Communications Act define in even greater detail the bounds of state authority
over particular areas. For instance, Title VI in large part deals with state and local governments’ over particular areas. For instance, Title VI in large part deals with state and local governments’

74ability to award franchises to cable operators.80 While this title requires cable operators to obtain a franchise from a state or local franchising authority before providing cable service, it also prohibits franchising authorities from, among other things, (1) “unreasonably refus[ing]” to award 73 See, e.g., , Mozilla, 940 F.3d at 75 (“Of course, if a federal law expressly confers upon the agency the authority to , 940 F.3d at 75 (“Of course, if a federal law expressly confers upon the agency the authority to
preempt, that legislative delegation creates and defines the agency’s power to displace state laws.”). preempt, that legislative delegation creates and defines the agency’s power to displace state laws.”).
7574 47 U.S.C. § 332(c)(7)(B). 47 U.S.C. § 332(c)(7)(B).
7675 Id. § 332(c)(7)(A). § 332(c)(7)(A).
7776 City of Arlington v. FCC, 668 F.3d 229, 250–54 (5th Cir. 2012) (stating that Section 332(c)(7)(A) “certainly City of Arlington v. FCC, 668 F.3d 229, 250–54 (5th Cir. 2012) (stating that Section 332(c)(7)(A) “certainly
prohibits the FCC from imposing restrictions or limitations that cannot be tied to the language of § 332(c)(7)(B),” but prohibits the FCC from imposing restrictions or limitations that cannot be tied to the language of § 332(c)(7)(B),” but
also holding that the FCC is “entitled to deference with respect to its exercise of authority to implement also holding that the FCC is “entitled to deference with respect to its exercise of authority to implement
§ 332(c)(7)(B)(ii) and (v)”); § 332(c)(7)(B)(ii) and (v)”); see also Up State Tower Co., LLC v. Town of Kiantone, New York, 718 F. App’x. 29, 31 Up State Tower Co., LLC v. Town of Kiantone, New York, 718 F. App’x. 29, 31
n.1 (2d Cir. 2017) (“We agree with the 5th Circuit that because the two FCC Orders cited herein are reasonable n.1 (2d Cir. 2017) (“We agree with the 5th Circuit that because the two FCC Orders cited herein are reasonable
constructions of § 332(c)(7)(B), they ‘are thus entitled to Chevron deference.’”) (citing constructions of § 332(c)(7)(B), they ‘are thus entitled to Chevron deference.’”) (citing City of Arlington, 668 F.3d at , 668 F.3d at
256). 256).
7877 47 U.S.C. § 253(a). 47 U.S.C. § 253(a).
7978 Id. § 253(a), (d). § 253(a), (d).
8079 Id. § 253(c). 80 In the context of cable television, a “franchise” refers to the right to operate a cable system in a given area. For more information, see CRS Report R46147, The Cable Franchising Authority of State and Local Governments and the Communications Act, by Chris D. Linebaugh and Eric N. Holmes. Congressional Research Service 9 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act Id. § 253(c).
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~~Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act~~

~~ability to award franchises to cable operators.81 While this title requires cable operators to obtain a~~
~~franchise from a state or local franchising authority before providing cable service, it also~~
~~prohibits franchising authorities from, among other things, (1) “unreasonably refus[ing]” to award~~
franchises, (2) establishing requirements for “video programming or other information services,” franchises, (2) establishing requirements for “video programming or other information services,”
or (3) imposing franchise fees exceeding 5% of the cable operator’s gross annual revenue.or (3) imposing franchise fees exceeding 5% of the cable operator’s gross annual revenue.8281 Title Title
VI further “preempt[s] and supersede[s]” “any provision of law of any State, political VI further “preempt[s] and supersede[s]” “any provision of law of any State, political
subdivision, or agency thereof . . . which is inconsistent with this chapter.”subdivision, or agency thereof . . . which is inconsistent with this chapter.”8382
Later sections of this report discuss the FCC’s implementation of these various preemption Later sections of this report discuss the FCC’s implementation of these various preemption
provisionsprovisions, and recent disputes surrounding that implementation and recent disputes surrounding that implementation~~, in greater detail~~. .
Clear Statement Rule
Even if the FCC has regulatory jurisdiction over the area it seeks to preempt and its preemption Even if the FCC has regulatory jurisdiction over the area it seeks to preempt and its preemption
accords with any specific statutory provisions, its ability to preempt may still be limited by a accords with any specific statutory provisions, its ability to preempt may still be limited by a
“clear statement” rule. In particular, as previously discussed, the Supreme Court has said that “clear statement” rule. In particular, as previously discussed, the Supreme Court has said that
Congress must be “unmistakably clear in the language of the statute” if it intends to preempt state Congress must be “unmistakably clear in the language of the statute” if it intends to preempt state
law in a way that would upset the “usual constitutional balance” between states and the federal law in a way that would upset the “usual constitutional balance” between states and the federal
government.government.8483 The Supreme Court has relied on this rule to vacate the FCC’s preemption of state The Supreme Court has relied on this rule to vacate the FCC’s preemption of state
laws governing laws governing ~~their~~a state’s municipalities. Most relevantly, and as discussed later in this report, the municipalities. Most relevantly, and as discussed later in this report, the
Supreme Court and the Sixth Circuit have held that the FCC does not have authority to preempt Supreme Court and the Sixth Circuit have held that the FCC does not have authority to preempt
state laws prohibiting or restricting municipalities from providing broadband service because, in state laws prohibiting or restricting municipalities from providing broadband service because, in
part, Congress had not provided a “plain statement” of its intent to preempt such laws.part, Congress had not provided a “plain statement” of its intent to preempt such laws.8584
Current Issues
The FCC’s ability to preempt state laws has been at the heart of many of its regulatory initiatives The FCC’s ability to preempt state laws has been at the heart of many of its regulatory initiatives
in recent years. In particular, preemption is at the forefront of the Commission’s efforts toin recent years. In particular, preemption is at the forefront of the Commission’s efforts to: (1) (1)
remove net neutrality requirementsremove net neutrality requirements,; (2) maintain a lightly-regulated approach to VoIP services (2) maintain a lightly-regulated approach to VoIP services,;
(3) accelerate deployment of fifth-generation wireless (5G) infrastructure(3) accelerate deployment of fifth-generation wireless (5G) infrastructure,; (4) facilitate municipal (4) facilitate municipal
(or “community”) broadband(or “community”) broadband,; and (5) promote the provision of cable and internet services. State and (5) promote the provision of cable and internet services. State
and local governments have challenged these initiatives in court, arguing that the FCC has and local governments have challenged these initiatives in court, arguing that the FCC has
exceeded its preemption authority. In some cases, courts have agreed that the FCC overstepped its exceeded its preemption authority. In some cases, courts have agreed that the FCC overstepped its
statutory bounds. In other cases, the legal challenges statutory bounds. In other cases, the legal challenges ~~remain~~are ongoing, leaving a cloud of ongoing, leaving a cloud of
uncertainty over the FCC’s actions. uncertainty over the FCC’s actions.
This section discusses the FCC’s preemption efforts in each of these areas, including the legal This section discusses the FCC’s preemption efforts in each of these areas, including the legal
challenges and issues arising from them.challenges and issues arising from them.

~~81 In the context of cable television, a “franchise” refers to the right to operate a cable system in a given area. For more~~
~~information, see CRS Report R46147,~~ ~~The Cable Franchising Authority of State and Local Governments and the~~
~~Communications Act, by Chris D. Linebaugh and Eric N. Holmes.~~
~~82 47 U.S.C. §§ 541(a)(1), 542(b), 544(b).~~
~~83 Id. § 556(c).~~
84 Net Neutrality Preemption has played a key part in the FCC’s efforts to establish a nation-wide policy on “net neutrality,” which is the “principle that broadband providers must treat all internet traffic the same regardless of source.”85 In 2018, the FCC issued an order removing net neutrality regulations at the federal level.86 At the same time, the Commission attempted to preempt any 81 47 U.S.C. §§ 541(a)(1), 542(b), 544(b). 82 Id. § 556(c). 83 Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Atascadero State Hosp. v. Scanion, 473 U.S. 234, 242 Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Atascadero State Hosp. v. Scanion, 473 U.S. 234, 242
(1985)). (1985)).
8584 Nixon v. Mo. Mun. League, 541 U.S. 125, 140–41 (2004); Tennessee v. FCC, 832 F.3d 597 (6th Cir. 2016). Nixon v. Mo. Mun. League, 541 U.S. 125, 140–41 (2004); Tennessee v. FCC, 832 F.3d 597 (6th Cir. 2016).
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~~link to page 20~~ ~~Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act~~

~~Net Neutrality~~
~~Preemption has played a key part in the FCC’s efforts to establish a nation-wide policy on “net~~
~~neutrality,” which is the “principle that broadband providers must treat all internet traffic the same~~
~~regardless of source.”86 In 2018, the FCC issued an order removing net neutrality regulations at~~
~~the federal level.87 At the same time, the Commission attempted to preempt any similar state~~
~~regulations.88 In the case~~85 USTA v. FCC, 825 F.3d 674, 689 (D.C. Cir. 2016). 86 In the Matter of Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 33 FCC Rcd. 311 Congressional Research Service 10 link to page 20 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act state net neutrality regulations.87 In the case of Mozilla v. FCC, the D.C. Circuit upheld most of the FCC’s repeal of , the D.C. Circuit upheld most of the FCC’s repeal of its net net
neutrality rules.neutrality rules.8988 However, However, itthe court vacated the FCC’s blanket preemption of any state net neutrality vacated the FCC’s blanket preemption of any state net neutrality
laws.laws.9089 As a result, states may be able to enact their own net neutrality As a result, states may be able to enact their own net neutrality ~~laws~~requirements. Some states, such as . Some states, such as
California, have already done so.California, have already done so.9190 Nevertheless, Nevertheless, Mozilla left room for state laws to be preempted left room for state laws to be preempted
on a case-by-case basis under principles of conflict preemption.on a case-by-case basis under principles of conflict preemption.9291 Thus, if a later court determines Thus, if a later court determines
that a state law “actually undermines” the FCC’s order, then such a law wouldthat a state law “actually undermines” the FCC’s order, then such a law would ~~still~~ be preempted be preempted
and unenforceable.and unenforceable.9392 This section discusses the FCC’s actions, the D.C. Circuit’s This section discusses the FCC’s actions, the D.C. Circuit’s Mozilla opinion, opinion,
and ongoing issues surrounding state net neutrality lawsand ongoing issues surrounding state net neutrality laws ~~in greater detail~~. .
FCC’s Actions
As described in more detail in CRS Report R40616, As described in more detail in CRS Report R40616, The Federal Net Neutrality Debate: Access
to Broadband Networks, by Patricia Moloney Figliola, the FCC’s approach towards net neutrality , by Patricia Moloney Figliola, the FCC’s approach towards net neutrality
in recent years has been in flux. In particular, the FCC has toggled between classifying broadband in recent years has been in flux. In particular, the FCC has toggled between classifying broadband
Internet access service (BIAS) as either: 1) a “telecommunications service,” meaning a common Internet access service (BIAS) as either: 1) a “telecommunications service,” meaning a common
carrier subject to regulation under Title II of the Act, or 2) an “information service” as defined in carrier subject to regulation under Title II of the Act, or 2) an “information service” as defined in
Title I of the Act.Title I of the Act.9493 The FCC has discretion to choose which category is most appropriate for The FCC has discretion to choose which category is most appropriate for
BIAS, as evidenced by the Supreme Court and D.C. Circuit’s application of the BIAS, as evidenced by the Supreme Court and D.C. Circuit’s application of the Chevron
doctrine—under which courts generally defer to an agency’s reasonable interpretation of an doctrine—under which courts generally defer to an agency’s reasonable interpretation of an
ambiguous statutory provision—to repeatedly uphold the Commission’s different classification ambiguous statutory provision—to repeatedly uphold the Commission’s different classification
choices.choices.9594
The Commission’s choice between the two categories is significant because they have been The Commission’s choice between the two categories is significant because they have been
treated as “mutually exclusive,” i.e., an information service is not subject to regulations treated as “mutually exclusive,” i.e., an information service is not subject to regulations
governing a telecommunications service under Title II.governing a telecommunications service under Title II.9695 Because Title I does not give the FCC Because Title I does not give the FCC

~~86 USTA v. FCC, 825 F.3d 674, 689 (D.C. Cir. 2016).~~
~~87 In the Matter of Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 33 FCC Rcd. 311~~
any affirmative regulatory authority over information services—and because information services (2018) [hereinafter 2018 Internet Order]. (2018) [hereinafter 2018 Internet Order].
8887 2018 Internet Order, 33 FCC Rcd. at 427, para. 195 (“We therefore preempt any state or local measures that would 2018 Internet Order, 33 FCC Rcd. at 427, para. 195 (“We therefore preempt any state or local measures that would
effectively impose rules or requirements that we have repealed or decided to refrain from imposing in this order or that effectively impose rules or requirements that we have repealed or decided to refrain from imposing in this order or that
would impose more stringent requirements for any aspect of broadband service that we address in this order.”). would impose more stringent requirements for any aspect of broadband service that we address in this order.”).
8988 Mozilla, 940 F.3d at 18. , 940 F.3d at 18.
9089 Id. at 74. at 74.
9190 See “Next Steps.”
9291 Mozilla, 940 F.3d at 85. , 940 F.3d at 85.
9392 Id.
9493 47 U.S.C. §§ 153(24), (50)–(51), (53); 47 U.S.C. §§ 153(24), (50)–(51), (53); see also Mozilla, 940 F.3d at 17 (“[T]he 1996 Telecommunications Act , 940 F.3d at 17 (“[T]he 1996 Telecommunications Act
creates two potential classifications for broadband Internet: ‘telecommunications services’ under Title II of the Act and creates two potential classifications for broadband Internet: ‘telecommunications services’ under Title II of the Act and
‘information services’ under Title I. These similar-sounding terms carry considerable significance: Title II entails ‘information services’ under Title I. These similar-sounding terms carry considerable significance: Title II entails
common carrier status, see 47 U.S.C. § 153(51) (defining ‘telecommunications carrier’), and triggers an array of common carrier status, see 47 U.S.C. § 153(51) (defining ‘telecommunications carrier’), and triggers an array of
statutory restrictions and requirements (subject to forbearance at the Commission’s election)”). statutory restrictions and requirements (subject to forbearance at the Commission’s election)”).
9594 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986–1000 (2005); U.S. Telecom Ass’n v. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986–1000 (2005); U.S. Telecom Ass’n v.
FCC, 825 F.3d 674–706 (D.C. Cir. 2016); FCC, 825 F.3d 674–706 (D.C. Cir. 2016); Mozilla, 940 F.3d at 18–35 (2019). , 940 F.3d at 18–35 (2019).
9695 See Brand X, 545 U.S. at 976 (“Information-service providers, by contrast, are not subject to mandatory common-, 545 U.S. at 976 (“Information-service providers, by contrast, are not subject to mandatory common-
carrier regulation under Title II, though the Commission has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications”); Mozilla, 940 F.3d at 19 (“[G]iven that ‘telecommunications service’ and ‘information service’ have been treated as mutually exclusive by the Commission since the late 1990s, a premise Petitioners do not challenge, we view Brand X as binding precedent in this case.”) (internal citations omitted). Congressional Research Service Congressional Research Service
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Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act

~~any affirmative regulatory authority over information services—and because information services~~
are necessarily outside of Title II—the Commission may only regulate information services are necessarily outside of Title II—the Commission may only regulate information services
pursuant to its ancillary authority or some other non-Title II source of affirmative authority.pursuant to its ancillary authority or some other non-Title II source of affirmative authority.9796
Furthermore, even if the FCC uses a non-Title II source of authority, it may not use this authority Furthermore, even if the FCC uses a non-Title II source of authority, it may not use this authority
to impose net neutrality regulations on information service providers that amount to “to impose net neutrality regulations on information service providers that amount to “per se” ”
common carrier regulations. In a 2010 order, the FCC tried to impose net neutrality rules while common carrier regulations. In a 2010 order, the FCC tried to impose net neutrality rules while
still classifying BIAS as an information service.still classifying BIAS as an information service.9897 The Commission grounded its legal authority The Commission grounded its legal authority
for the rule in a non-Title II provision—Section 706 of the Telecommunications Act of 1996for the rule in a non-Title II provision—Section 706 of the Telecommunications Act of 1996,
~~which~~. Section 706 amended the Communications Act to, among other things, direct the Commission to amended the Communications Act to, among other things, direct the Commission to
“encourage the deployment on a reasonable and timely basis” of “advanced telecommunications “encourage the deployment on a reasonable and timely basis” of “advanced telecommunications
capability.”capability.”9998 The D.C. Circuit rejected this approach The D.C. Circuit rejected this approach~~, however, in the~~ in its 2014 decision 2014 decision in Verizon v.
FCC..~~100~~99 The court deferred to the FCC’s interpretation that Section 706 was an independent grant The court deferred to the FCC’s interpretation that Section 706 was an independent grant
of authority, sufficient to support the of authority, sufficient to support the issuance of rules in the 2010 order.rules in the 2010 order.~~101~~100 Nevertheless, the D.C. Circuit Nevertheless, the D.C. Circuit
held that the bulk of these net neutrality rules (specifically, rules prohibiting BIAS providers from held that the bulk of these net neutrality rules (specifically, rules prohibiting BIAS providers from
blocking or discriminating against lawful content) amounted to “blocking or discriminating against lawful content) amounted to “per se” common carrier rules” common carrier rules~~.102~~
imposed on non-common carriers, i.e., information service providers.101 According to the court, According to the court, ~~such common carrier~~these rules ran “afoul” of the Act’s definition of rules ran “afoul” of the Act’s definition of
telecommunications carriers, telecommunications carriers, ~~as it~~which provides that “a telecommunications carrier shall be treated as a provides that “a telecommunications carrier shall be treated as a
common carrier under this chapter only to the extent that it is engaged in providing common carrier under this chapter only to the extent that it is engaged in providing
telecommunications services.”telecommunications services.”~~103~~102
Given the Given the Verizon decision, the FCC issued a new order in 2015 (2015 Open Internet Order) that decision, the FCC issued a new order in 2015 (2015 Open Internet Order) that
addressed the flaw identified in addressed the flaw identified in Verizon by by ~~classifying~~reclassifying BIAS as a Title II telecommunications BIAS as a Title II telecommunications
service.service.~~104~~103 The 2015 Open Internet Order, among other things, imposed three bright-line net The 2015 Open Internet Order, among other things, imposed three bright-line net
neutrality rules on BIAS providers. These rules neutrality rules on BIAS providers. These rules ~~banned~~prohibited BIAS providers from: (1) BIAS providers from: (1) blocking lawful lawful
content, applications, services, or non-harmful devicescontent, applications, services, or non-harmful devices,; (2) (2) throttling (i.e., impairing or (i.e., impairing or
degrading) lawful content, applications, services, or non-harmful devicesdegrading) lawful content, applications, services, or non-harmful devices,; and (3) engaging in and (3) engaging in
paid prioritization, defined as favoring some internet traffic over others in exchange for , defined as favoring some internet traffic over others in exchange for
consideration.consideration.~~105~~104 The order also imposed a more flexible standard referred to as the “General The order also imposed a more flexible standard referred to as the “General
Conduct Rule,” which prohibited BIAS providers from “unreasonably interfer[ing] or Conduct Rule,” which prohibited BIAS providers from “unreasonably interfer[ing] or
unreasonably disavantag[ing]” users from accessing the content or services of their choice.unreasonably disavantag[ing]” users from accessing the content or services of their choice.~~106 The~~

~~carrier regulation under Title II, though the Commission has jurisdiction to impose additional regulatory obligations~~
~~under its Title I ancillary jurisdiction to regulate interstate and foreign communications”); Mozilla, 940 F.3d at 19~~
~~(“[G]iven that ‘telecommunications service’ and ‘information service’ have been treated as mutually exclusive by the~~
~~Commission since the late 1990s, a premise Petitioners do not challenge, we view Brand X as binding precedent in this~~
~~case.”) (internal citations omitted).~~
97105 The following year, in United States Telecom Ass’n v. FCC, the D.C. Circuit upheld the FCC’s 2015 Open Internet Order in its entirety.106 The Commission reversed course in 2018, however, and issued a new order titled “Restoring Internet Freedom” (2018 RIF Order).107 The 2018 RIF Order reclassified broadband Internet as an 96 See Brand X, 545 U.S. at 976; , 545 U.S. at 976; Mozilla, 940 F.3d at 76 (“Title I is not an independent source of regulatory authority.”) , 940 F.3d at 76 (“Title I is not an independent source of regulatory authority.”)
(internal citations omitted). (internal citations omitted).
9897 See In re Preserving the Open Internet, Report and Order, 25 FCC Rcd. 17905 (2010). In re Preserving the Open Internet, Report and Order, 25 FCC Rcd. 17905 (2010).
9998 Id. at 17968– at 17968–~~17972~~72; 47 U.S.C. § 1302(b). ; 47 U.S.C. § 1302(b).
~~100~~99 740 F.3d 623 (D.C. Cir. 2014). 740 F.3d 623 (D.C. Cir. 2014).
~~101~~100 Id. at 635–49. at 635–49.
~~102~~101 Id. at 650–59, 701. at 650–59, 701.
~~103~~102 Id. at 650; at 650; see also 47 U.S.C. § 153(51). 47 U.S.C. § 153(51).
~~104~~103 In the Matter of Protecting and Promoting the Open Internet, Report and Order on Remand, Declaratory Ruling, and In the Matter of Protecting and Promoting the Open Internet, Report and Order on Remand, Declaratory Ruling, and
Order, 30 FCC Rcd. 5601 (2015) [hereinafter 2015 Open Internet Order]. Order, 30 FCC Rcd. 5601 (2015) [hereinafter 2015 Open Internet Order].
~~105~~104 Id. at 5607–08. at 5607–08.
~~106~~105 Id. at 5609. 106 825 F.3d 674 (D.C. Cir. 2016). 107 In the Matter of Restoring Internet Freedom, Report an Order, and Order, 33 FCC Rcd. 331 (2018) [hereinafter 2018 Congressional Research Service 12 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act Id. at 5609.
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~~following year, in United States Telecom Ass’n v. FCC, the D.C. Circuit upheld the FCC’s 2015~~
~~Open Internet Order in its entirety.107~~
~~The Commission, however, reversed course in 2018 and issued a new order titled “Restoring~~
~~Internet Freedom” (2018 RIF Order).108 The 2018 RIF Order reclassified broadband Internet as an~~
“information service” and eliminated the bright-line rules and General Conduct Rule.“information service” and eliminated the bright-line rules and General Conduct Rule.~~109~~108 Along Along
with removing BIAS from Title II, the FCC also forsook any regulatory authority over BIAS with removing BIAS from Title II, the FCC also forsook any regulatory authority over BIAS
based on Section 706 of the Telecommunications Act, concluding that it was not an independent based on Section 706 of the Telecommunications Act, concluding that it was not an independent
grant of regulatory authority.grant of regulatory authority.~~110~~109 Furthermore, most relevant to this report, the 2018 RIF Order Furthermore, most relevant to this report, the 2018 RIF Order
broadly preempted any state or local laws “that would effectively impose rules or requirements broadly preempted any state or local laws “that would effectively impose rules or requirements
that [it] repealed or decided to refrain from imposingthat [it] repealed or decided to refrain from imposing,” or that imposed “more stringent ” or that imposed “more stringent
requirements for any aspect of broadband service” addressed by the 2018 RIF Order.requirements for any aspect of broadband service” addressed by the 2018 RIF Order.~~111~~110 The The
Commission reasoned that “[a]llowing state and local governments to adopt their own separate Commission reasoned that “[a]llowing state and local governments to adopt their own separate
requirements, which could impose far greater burdens than the federal regulatory regime, could requirements, which could impose far greater burdens than the federal regulatory regime, could
significantly disrupt the balance we strike here.”significantly disrupt the balance we strike here.”~~112~~111 Consequently, it concluded that it should Consequently, it concluded that it should
“exercise [its] authority to preempt any state or local requirements that are inconsistent with the “exercise [its] authority to preempt any state or local requirements that are inconsistent with the
federal deregulatory approach” it adopted.federal deregulatory approach” it adopted.~~113~~112 While the 2018 RIF Order reclassified BIAS and While the 2018 RIF Order reclassified BIAS and
removed the net neutrality requirements, it left in place (and in some cases enhanced) existing removed the net neutrality requirements, it left in place (and in some cases enhanced) existing
transparency requirements, requiring providers to disclose, among other things, any blocking, transparency requirements, requiring providers to disclose, among other things, any blocking,
throttling, and paid prioritization practices.throttling, and paid prioritization practices.~~114~~113 The Commission also explained that the 2018 RIF The Commission also explained that the 2018 RIF
Order restored the Federal Trade Commission’s (FTC) jurisdiction over BIAS providers, since Order restored the Federal Trade Commission’s (FTC) jurisdiction over BIAS providers, since
such providers are no longer common carriers, and that the FTC would be able to police BIAS such providers are no longer common carriers, and that the FTC would be able to police BIAS
providers’ data security and privacy practices.providers’ data security and privacy practices.~~115~~114
Mozilla Corp. v. FCC
In 2019, the D.C. Circuit weighed in on the 2018 RIF Order’s legality in In 2019, the D.C. Circuit weighed in on the 2018 RIF Order’s legality in Mozilla Corp. v. FCC..~~116~~115
While the court upheld the bulk of the order, it vacated the 2018 RIF Order’s “sweeping” While the court upheld the bulk of the order, it vacated the 2018 RIF Order’s “sweeping”
preemption of “any state or local requirements that are inconsistent with [its] deregulatory preemption of “any state or local requirements that are inconsistent with [its] deregulatory
approach.”approach.”~~117~~116 The court reasoned that the FCC no longer has affirmative regulatory authority over The court reasoned that the FCC no longer has affirmative regulatory authority over
BIAS, now that it is classified as an information service, and the Commission could not preempt BIAS, now that it is classified as an information service, and the Commission could not preempt
state law in an area over which it does not have regulatory authority without an express state law in an area over which it does not have regulatory authority without an express

~~107 825 F.3d 674 (D.C. Cir. 2016).~~
~~108 In the Matter of Restoring Internet Freedom, Report an Order, and Order, 33 FCC Rcd. 331 (2018) [hereinafter 2018~~
~~RIF Order].~~
~~109 Id. at 312–13, paras. 2–4.~~
~~110 Id. at 470–80, paras. 268–83.~~
~~111 Id. at 427, para. 195.~~
~~112 Id. at 426, para. 194.~~
113 Id.
~~114~~authorization from Congress.117 The court left open, however, the possibility that specific state laws might be preempted on a case-by-case basis under principles of conflict preemption.118 While the decision was unanimous on other aspects of the case, one member of the three judge RIF Order]. 108 Id. at 312–13, paras. 2–4. 109 Id. at 470–80, paras. 268–83. 110 Id. at 427, para. 195. 111 Id. at 426, para. 194. 112 Id. 113 Id. at 437–50, paras 215–38. As authority for these transparency requirements, the Commission cited section 257 of at 437–50, paras 215–38. As authority for these transparency requirements, the Commission cited section 257 of
the Communications Act, which directs the commission to “identify[] and eliminat[e]the Communications Act, which directs the commission to “identify[] and eliminat[e] . . . market entry barriers for . . . market entry barriers for
entrepreneurs and other small businesses in the provision and ownership of telecommunications services and entrepreneurs and other small businesses in the provision and ownership of telecommunications services and
information services, or in the provision of parts or services to providers of telecommunications services and information services, or in the provision of parts or services to providers of telecommunications services and
information services.” 47 U.S.C. § 257(a). information services.” 47 U.S.C. § 257(a).
~~115~~114 Id. at 419–20, 434, paras. 181–84, 208. Under the Federal Trade Commission Act, common carriers are exempt at 419–20, 434, paras. 181–84, 208. Under the Federal Trade Commission Act, common carriers are exempt
from the FTC’s jurisdiction. from the FTC’s jurisdiction. See 15 U.S.C. § 45(a)(2). 15 U.S.C. § 45(a)(2).
~~116~~115 940 F.3d 1 (D.C. Cir. 2019). 940 F.3d 1 (D.C. Cir. 2019).
117 Id. ~~at 74~~116 Id. at 74. 117 Id. at 74–76. 118 Id. at 85. .
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Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act

~~authorization from Congress.118 The court left open, however, the possibility that specific state~~
~~laws might be preempted on a case-by-case basis under principles of conflict preemption.119~~
~~While the decision was unanimous on other aspects of the case, one member of the three judge~~
panel, Judge Williams, dissented from the court’s preemption holding.panel, Judge Williams, dissented from the court’s preemption holding.~~120~~119 Among other things, he Among other things, he
reasoned that the majority’s position asymmetrically favored regulation over deregulation by only reasoned that the majority’s position asymmetrically favored regulation over deregulation by only
allowing the Commission to ensure a national policy if it chose to affirmatively regulate BIAS allowing the Commission to ensure a national policy if it chose to affirmatively regulate BIAS
under Title II.under Title II.~~121~~120 Judge Williams Judge Williams ~~further~~also expressed skepticism that any laws would be expressed skepticism that any laws would be ~~preempted~~
~~through~~ subject to conflict preemption, given the majority’s rationale conflict preemption, given the majority’s rationale infor overturning the Order’s overturning the Order’s
express preemptionpreemption~~.122~~ provision.121
The majority and dissenting opinions in The majority and dissenting opinions in Mozilla contain a vigorous discussion of the FCC’s contain a vigorous discussion of the FCC’s
preemption authority and demonstrate the challenges with determining the bounds of this preemption authority and demonstrate the challenges with determining the bounds of this
authority in particular cases. authority in particular cases. ~~Furthermore, the~~The majority opinion in particular will likely inform majority opinion in particular will likely inform
district courts as they consider whether state net neutrality laws are preempted by the 2018 RIF district courts as they consider whether state net neutrality laws are preempted by the 2018 RIF
Order under principles of conflict preemption. Consequently, these opinions are worth examining Order under principles of conflict preemption. Consequently, these opinions are worth examining
in further detail. in further detail.
Majority Opinion’s Preemption Analysis
In its preemption analysis, the court started with the basic principle, articulated by the Supreme In its preemption analysis, the court started with the basic principle, articulated by the Supreme
Court, that an agency “may preempt state law only when and if it is acting within the scope of its Court, that an agency “may preempt state law only when and if it is acting within the scope of its
congressionally delegated authority.”congressionally delegated authority.”~~123~~122 From there, the court reasoned that, “[b]y the same token, From there, the court reasoned that, “[b]y the same token,
in any area where the Commission lacks the authority to regulate, it equally lacks the power to in any area where the Commission lacks the authority to regulate, it equally lacks the power to
preempt state law.”preempt state law.”~~124~~123 The court recognized, as a caveat, that, “[o]f course, if a federal law The court recognized, as a caveat, that, “[o]f course, if a federal law
expressly confers upon the agency the authority to preempt, that legislative delegation creates and expressly confers upon the agency the authority to preempt, that legislative delegation creates and
defines the agency’s power to displace state laws.”defines the agency’s power to displace state laws.”~~125~~124
Applying this framework to the 2018 RIF Order’s preemption, the court concluded that the Applying this framework to the 2018 RIF Order’s preemption, the court concluded that the
preemption was unlawful because the FCC did not have regulatory authority over BIASpreemption was unlawful because the FCC did not have regulatory authority over BIAS and and
Congress had not granted it authority to displace state laws in areas Congress had not granted it authority to displace state laws in areas in which it does not have which it does not have
regulatory power.regulatory power.~~126~~125 The court explained that the Commission’s “regulatory jurisdiction falls into The court explained that the Commission’s “regulatory jurisdiction falls into
two categories”: (1) the “express and expansive authority” it has over common carriers under two categories”: (1) the “express and expansive authority” it has over common carriers under
Title II, radio transmissions under Title III, and cable services under Title VI; and (2) its Title II, radio transmissions under Title III, and cable services under Title VI; and (2) its
“ancillary authority,” allowing it to regulate matters “reasonably ancillary to the effective “ancillary authority,” allowing it to regulate matters “reasonably ancillary to the effective
performance” of its express authority.performance” of its express authority.~~127~~126 The FCC’s preemption “could not possibly be an The FCC’s preemption “could not possibly be an
exercise of the Commission’s express statutory authority,” the court said, because by reclassifying exercise of the Commission’s express statutory authority,” the court said, because by reclassifying
BIAS as an information service BIAS as an information service itthe FCC “placed broadband “placed broadband outside of its Title II jurisdiction.”of its Title II jurisdiction.”~~128~~127
Further, the court reasoned, broadband is not a radio transmission under Title Further, the court reasoned, broadband is not a radio transmission under Title IIIII or cable service under Title VI.128 The preemption also did not fall under the FCC’s ancillary authority because it was not related to the Commission’s “effective performance” of its “statutorily mandated responsibilities” under Title II, III, or VI.129 Since the Commission had neither express nor 119 ~~or cable service~~

~~118 Id. at 74–76.~~
~~119 Id. at 85~~
~~120~~ Id. at 95 (Williams, J., dissenting). at 95 (Williams, J., dissenting).
~~121~~120 Id. at 99–100. at 99–100.
~~122~~121 Id. at 106–07. at 106–07.
~~123~~122 Id. at 74–75 (quoting at 74–75 (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)). La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)).
~~124~~123 Id. at 75. at 75.
~~125~~124 Id.
~~126~~125 Id. at 75–76. at 75–76.
~~127~~126 Id. at 124. at 124.
~~128~~127 Id. at 124–25 (emphasis in original). at 124–25 (emphasis in original).
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~~Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act~~

~~under Title VI.129 Further, the preemption did not fall under the FCC’s ancillary authority because~~
~~it was not related to the Commission’s “effective performance” of its “statutorily mandated~~
~~responsibilities” under Title II, III, or VI.130 Since the Commission had neither express nor~~
128 Id. 129 Id. at 25. The court further noted that the Commission “seemingly agrees,” as it did not claim ancillary authority in Congressional Research Service 14 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act ancillary authority—and since “Congress [did not] statutorily grant the Commission freestanding ancillary authority—and since “Congress [did not] statutorily grant the Commission freestanding
preemption authority to displace state laws even in areas in which it does not otherwise have preemption authority to displace state laws even in areas in which it does not otherwise have
regulatory power”—the court concluded that the preemption directive could not stand.”regulatory power”—the court concluded that the preemption directive could not stand.”~~131~~130
While the Commission articulated two other theories for its preemption—the “impossibility While the Commission articulated two other theories for its preemption—the “impossibility
exception” and the “federal policy of nonregulation for information services”—the court rejected exception” and the “federal policy of nonregulation for information services”—the court rejected
both in turn.both in turn.~~132~~131 The impossibility exception, the court explained, is simply an exception to Section The impossibility exception, the court explained, is simply an exception to Section
2(b) of the Act’s limitation on the FCC’s authority over “intrastate communication.”2(b) of the Act’s limitation on the FCC’s authority over “intrastate communication.”~~133~~132 According According
to the court, the impossibility exception “presupposes the existence of statutory authority to to the court, the impossibility exception “presupposes the existence of statutory authority to
regulate,” and the Commission may not use it as a “substitute for that necessary delegation of regulate,” and the Commission may not use it as a “substitute for that necessary delegation of
power from Congress.”power from Congress.”~~134~~133
The court found the FCC’s reliance on a “federal policy of nonregulation for information The court found the FCC’s reliance on a “federal policy of nonregulation for information
services” equally unavailing.services” equally unavailing.~~135~~134 The Commission marshalled several different provisions The Commission marshalled several different provisions
supporting this policy, including (1) Section 230(b)(2), which states that the “policy of the United supporting this policy, including (1) Section 230(b)(2), which states that the “policy of the United
states [is] to preserve the vibrant and competitive free market . . . for the Internet,” (2) the states [is] to preserve the vibrant and competitive free market . . . for the Internet,” (2) the
statement in the “telecommunications carrier” definition that telecommunications carriers shall statement in the “telecommunications carrier” definition that telecommunications carriers shall
only be treated as common carriers “to the extent [they are] engaged in providing only be treated as common carriers “to the extent [they are] engaged in providing
telecommunications services,” and (3) Section 10(e),telecommunications services,” and (3) Section 10(e),~~136~~135 which provides that states may not which provides that states may not
enforce Title II provisions that the Commission has chosen not to apply.enforce Title II provisions that the Commission has chosen not to apply.~~137 However, none~~136 None of of
these provisions, the court explained, give the FCC affirmative authority to regulate information these provisions, the court explained, give the FCC affirmative authority to regulate information
services. The policy statement in Section 230(b)(2) is “just that”—a policy statement, rather than services. The policy statement in Section 230(b)(2) is “just that”—a policy statement, rather than
a “delegation of regulatory authority.”a “delegation of regulatory authority.”~~138~~137 Similarly, the definition of telecommunications carrier is Similarly, the definition of telecommunications carrier is
“not an independent source of regulatory authority,” but in fact contains a ““not an independent source of regulatory authority,” but in fact contains a “limitation on the on the
Commission’s authority.”Commission’s authority.”~~139~~138 Lastly, because the Commission took broadband “out of Title II,” the Lastly, because the Commission took broadband “out of Title II,” the
court explained, Section 10(e) “has no work to do here,” as it only applies to forbearance under court explained, Section 10(e) “has no work to do here,” as it only applies to forbearance under
Title II.Title II.~~140~~139
Lastly, the court rejected the argument—which it said was “invent[ed]” by the dissenting Lastly, the court rejected the argument—which it said was “invent[ed]” by the dissenting
opinion—that the Commission’s preemption power flows from its authority, under the opinion—that the Commission’s preemption power flows from its authority, under the Chevron
doctrine, to classify BIAS as either a Title I information service provider or a Title II doctrine, to classify BIAS as either a Title I information service provider or a Title II
telecommunications service.telecommunications service.~~141~~140 The majority explained that the dissenting opinion “makes the The majority explained that the dissenting opinion “makes the

~~129 Id.~~
~~130 Id. at 25. The court further noted that the Commission “seemingly agrees,” as it did not claim ancillary authority in~~
mistake of collapsing the distinction between (i) the Commission’s authority to make a threshold classification decision, and (ii) the authority to issue affirmative and State-displacing legal commands within the bounds of the classification scheme the Commission has selected (here, the 2018 RIF Order or its briefing.the 2018 RIF Order or its briefing. Id. at 126. at 126.
~~131~~130 Id. at 75–76. at 75–76.
~~132~~131 Id. at 76–80. at 76–80.
~~133~~132 Id. at 77–78. at 77–78.
~~134~~133 Id. at 78. at 78.
~~135~~134 Id.
~~136~~135 47 U.S.C. § 160(e). 47 U.S.C. § 160(e).
~~137~~136 Mozilla, 940 F.3d at, 940 F.3d at 78–80. 78–80.
~~138~~137 Id. at 78–79. at 78–79.
~~139~~138 Id. at 79 (emphasis in original). at 79 (emphasis in original).
~~140~~139 Id.
~~141~~140 Id. at 82. at 82.
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Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act

~~mistake of collapsing the distinction between (i) the Commission’s authority to make a threshold~~
~~classification decision, and (ii) the authority to issue affirmative and State-displacing legal~~
~~commands within the bounds of the classification scheme the Commission has selected (here,~~
~~Title I).”142~~Title I).”141 According to the majority, the “agency’s power to do the former says nothing about According to the majority, the “agency’s power to do the former says nothing about
its authority to do the latter.”its authority to do the latter.”~~143~~142
While the court vacated the 2018 RIF Order’s express preemption directive, it explained that it While the court vacated the 2018 RIF Order’s express preemption directive, it explained that it
was not considering whether the order could have preemptive effect under principles of conflict was not considering whether the order could have preemptive effect under principles of conflict
preemption. The court explained that conflict preemption—which asks whether a state law preemption. The court explained that conflict preemption—which asks whether a state law
““under the circumstances of the particular case stands stands as an obstacle to the objectives of an obstacle to the objectives of
Congress”—is inherently fact-specific and cannot be resolved in the abstract, “let alone in Congress”—is inherently fact-specific and cannot be resolved in the abstract, “let alone in
gross.”gross.”~~144~~143 It recognized, however, that “ It recognized, however, that “If[i]f the Commission can explain how a state practice the Commission can explain how a state practice
actually undermines the 2018 RIF Order, then it can invoke conflict preemption.”actually undermines the 2018 RIF Order, then it can invoke conflict preemption.”~~145~~144
Judge Williams’s Dissent
While the panel was unanimous on the bulk of the decision, Judge Williams dissented from the While the panel was unanimous on the bulk of the decision, Judge Williams dissented from the
preemption portion of the preemption portion of the ~~decision.146~~majority opinion.145 Judge Williams argued that the Communications Act Judge Williams argued that the Communications Act
impliedly gave the Commission authority for its broad preemption.impliedly gave the Commission authority for its broad preemption.~~147~~146 Judge Williams reasoned Judge Williams reasoned
that, under that, under Chevron, “Congress implicitly delegated to the FCC the power to determine whether , “Congress implicitly delegated to the FCC the power to determine whether
to locate broadband under Title II, where it would be potentially subject to the full gamut of to locate broadband under Title II, where it would be potentially subject to the full gamut of
regulations designed for natural monopoly, or under Title I, which itself authorizes virtually no regulations designed for natural monopoly, or under Title I, which itself authorizes virtually no
federal regulation.”federal regulation.”~~148~~147 Judge Williams argued that “[t]he consequences of the Commission’s Judge Williams argued that “[t]he consequences of the Commission’s
choice of Title I depend on its having authority to preempt,” as without it the Commission “de choice of Title I depend on its having authority to preempt,” as without it the Commission “de
facto yields authority over interstate communications to the states.”facto yields authority over interstate communications to the states.”~~149~~ 148 The majority’s refusal to The majority’s refusal to
recognize this authority, Judge Williams contended, resulted in an “asymmetry” based on the recognize this authority, Judge Williams contended, resulted in an “asymmetry” based on the
majority’s “staunch[] belie[f] that preemption serves solely to protect majority’s “staunch[] belie[f] that preemption serves solely to protect affirmative federal federal
regulations,” rather than a federal deregulatory scheme.,” rather than a federal deregulatory scheme.~~150~~149
Judge Williams also criticized the specific logic behind the majority’s decision. In particular, he Judge Williams also criticized the specific logic behind the majority’s decision. In particular, he
faulted the majority’s reliance on the “maxim” that an agency may only preempt state law if faulted the majority’s reliance on the “maxim” that an agency may only preempt state law if
either (1) it has “affirmative regulatory authority” over the area, or (2) there is an expresseither (1) it has “affirmative regulatory authority” over the area, or (2) there is an express
statutory authorization otherwise giving it preemption authority.statutory authorization otherwise giving it preemption authority.~~151~~150 First, Judge Williams took First, Judge Williams took
issue with the maxim itself because it requires issue with the maxim itself because it requires express authorization in the absence of regulatory authorization in the absence of regulatory authority.151 Judge Williams wrote that the formulation was “entirely the majority’s handiwork” and is at odds with “our living in a world where judicial interpretation of statutes rarely insists on

~~142~~141 Id. at 84. at 84.
~~143~~142 Id.
~~144~~143 Id. at 81. at 81.
~~145~~144 Id. at 85. at 85.
~~146~~145 Id. at 95 (Williams, J., dissenting). at 95 (Williams, J., dissenting).
~~147~~146 Id. at 96–97 (“But Supreme court decisions make clear that a federal agency’s authority to preempt state law need at 96–97 (“But Supreme court decisions make clear that a federal agency’s authority to preempt state law need
not be expressly granted . . . . Inquiry into that question proceeds in the usual way of discerning congressional intent. . . not be expressly granted . . . . Inquiry into that question proceeds in the usual way of discerning congressional intent. . .
. Congress implicitly delegated to the FCC the power to determine whether to locate broadband under Title II, where it . Congress implicitly delegated to the FCC the power to determine whether to locate broadband under Title II, where it
would be potentially subject to the full gamut of regulations designed for natural monopoly, or under Title I, which would be potentially subject to the full gamut of regulations designed for natural monopoly, or under Title I, which
itself authorizes virtually no federal regulation. . . . The consequences of the Commission's choice of Title I depend on itself authorizes virtually no federal regulation. . . . The consequences of the Commission's choice of Title I depend on
its having authority to preempt.”). its having authority to preempt.”).
~~148~~147 Id. at 97 (Williams, J., dissenting). at 97 (Williams, J., dissenting).
~~149~~148 Id.
~~150~~149 Id. at 99 (Williams, J., dissenting). at 99 (Williams, J., dissenting).
~~151~~150 Id. at 100–01 (Williams, J., dissenting). at 100–01 (Williams, J., dissenting).
151 Id. Congressional Research Service Congressional Research Service
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~~authority.152 Judge Williams wrote that the formulation was “entirely the majority’s handiwork”~~
~~and is at odds with “our living in a world where judicial interpretation of statutes rarely insists on~~
an express provision outside the context of a clear statement rule or its equivalent.”an express provision outside the context of a clear statement rule or its equivalent.”~~153~~152 According According
to Judge Williams, because Congress may preempt state law even when it chooses not to regulate, to Judge Williams, because Congress may preempt state law even when it chooses not to regulate,
it may also make a “choice (express or implied) to grant an agency equivalent preemptive it may also make a “choice (express or implied) to grant an agency equivalent preemptive
authority without any parallel federal regulation.”authority without any parallel federal regulation.”~~154~~153
Along with questioning the maxim itself, Judge Williams argued that it is “inapplicable” because Along with questioning the maxim itself, Judge Williams argued that it is “inapplicable” because
the Commission does in fact have affirmative regulatory authority over BIAS.the Commission does in fact have affirmative regulatory authority over BIAS.~~155~~154 Judge Williams Judge Williams
explained that there is “no doubt” that “the day before adoption of [the 2018 RIF Order], the explained that there is “no doubt” that “the day before adoption of [the 2018 RIF Order], the
Commission had authority to apply Title II to broadband.”Commission had authority to apply Title II to broadband.”~~156~~155 While the Commission’s While the Commission’s
reclassification of broadband “forswore any reclassification of broadband “forswore any current intention to use Title II vis-à-vis broadband” intention to use Title II vis-à-vis broadband”
it was not “a permanent renunciation of that power.”it was not “a permanent renunciation of that power.”~~157~~156
Judge Williams further rejected the idea that case-by-case application of conflict preemption Judge Williams further rejected the idea that case-by-case application of conflict preemption
principles would save the order from being “eviscerate[ed].”principles would save the order from being “eviscerate[ed].”~~158~~157 According to Judge Williams, the According to Judge Williams, the
“majority’s view of preemption seems to render any conflict unimaginable” because the majority “majority’s view of preemption seems to render any conflict unimaginable” because the majority
“rejects the idea that the Commission has exercised authority as to which [a state’s] enforcement “rejects the idea that the Commission has exercised authority as to which [a state’s] enforcement
of a Title II equivalent of a Title II equivalent could stand as an obstacle.”stand as an obstacle.”~~159~~158 The majority, Judge Williams wrote, The majority, Judge Williams wrote,
“conspicuously never offers an explanation of how a state regulation could ever conflict with the “conspicuously never offers an explanation of how a state regulation could ever conflict with the
federal white space to which its reasoning consigns broadband.”federal white space to which its reasoning consigns broadband.”~~160~~159
Next Steps
The D.C. Circuit’s decision in The D.C. Circuit’s decision in Mozilla is now final. The D.C. Circuit declined to rehear the case is now final. The D.C. Circuit declined to rehear the case
en banc, and the parties did not seek Supreme Court review by the July 6, 2020 deadline., and the parties did not seek Supreme Court review by the July 6, 2020 deadline.~~161~~160 With With
the change in presidential administration, it is possible that the FCC might reconsider its position the change in presidential administration, it is possible that the FCC might reconsider its position
on net neutrality. The new Acting on net neutrality. The new Acting ~~Chairwoman~~Chairperson, Commissioner Jessica Rosenworcel, dissented , Commissioner Jessica Rosenworcel, dissented
from the 2018 RIF Order, arguing that the decision put the FCC “on the wrong side of history, the from the 2018 RIF Order, arguing that the decision put the FCC “on the wrong side of history, the
wrong side of the law, and the wrong side of the American public.”wrong side of the law, and the wrong side of the American public.”~~162~~ 161 Absent new FCC action,Absent new FCC action,
future legal disputes surrounding net neutrality will likely focus on state laws.future legal disputes surrounding net neutrality will likely focus on state laws.~~163~~

~~152 Id. at 100–01 (Williams, J., dissenting).~~
~~153 Id. at 100 (Williams, J., dissenting).~~
~~154 Id. at 101 (Williams, J., dissenting).~~
155 Id.
156 Id.
157 Id.
~~158 Id. at 106 (Williams, J., dissenting).~~
~~159 Id. (internal quotations omitted).~~
160 Id.
~~161~~162 As discussed in the previous section, Mozilla left an opening for states to impose net neutrality requirements at the state level. A number of states have already enacted such laws. Some of these laws—specifically those of California and Washington—would require all BIAS providers 152 Id. at 100 (Williams, J., dissenting). 153 Id. at 101 (Williams, J., dissenting). 154 Id. 155 Id. 156 Id. 157 Id. at 106 (Williams, J., dissenting). 158 Id. (internal quotations omitted). 159 Id. 160 Order Denying Petition for Rehearing En Banc, Mozilla Corp. v. FCC, No. 18-1051, 2020 U.S. App. LEXIS 3726 Order Denying Petition for Rehearing En Banc, Mozilla Corp. v. FCC, No. 18-1051, 2020 U.S. App. LEXIS 3726
(D.C. Cir. 2020); Amy Keating and Alan Davidson, (D.C. Cir. 2020); Amy Keating and Alan Davidson, Next Steps for Net Neutrality, BLOG.MOZILLA.ORG (July 6, 2020), , BLOG.MOZILLA.ORG (July 6, 2020),
https://blog.mozilla.org/netpolicy/2020/07/06/next-steps-for-net-neutrality/ (“Today is the deadline to petition the https://blog.mozilla.org/netpolicy/2020/07/06/next-steps-for-net-neutrality/ (“Today is the deadline to petition the
Supreme Court for review of the D.C. Circuit decision in Supreme Court for review of the D.C. Circuit decision in Mozilla v. FCC. After careful consideration, Mozilla—as well . After careful consideration, Mozilla—as well
as its partners in this litigation—are not seeking Supreme Court review of the D.C. Circuit decision.”). as its partners in this litigation—are not seeking Supreme Court review of the D.C. Circuit decision.”).
~~162~~161 2018 RIF Order, 33 FCC Rcd. at 846–48 (Statement of Jessica Rosenworcel, dissenting). 2018 RIF Order, 33 FCC Rcd. at 846–48 (Statement of Jessica Rosenworcel, dissenting).
~~163~~162 Parties may no longer bring actions challenging the 2018 RIF Order, since the 60 day period for challenging the Parties may no longer bring actions challenging the 2018 RIF Order, since the 60 day period for challenging the
Order has passed. Order has passed. See 28 U.S.C. § 2344 (“Any party aggrieved by the final order may, within 60 days after its entry, 28 U.S.C. § 2344 (“Any party aggrieved by the final order may, within 60 days after its entry,
file a petition to review the order in the court of appeals wherein venue lies.”). file a petition to review the order in the court of appeals wherein venue lies.”).
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~~As discussed in the previous section, Mozilla left an opening for states to impose net neutrality~~
~~requirements at the state level. A number of states have already enacted such laws. Some of these~~
~~laws—specifically those of California and Washington—would require all BIAS providers~~
operating in the states to comply with net neutrality requirements similar to those in the 2015 operating in the states to comply with net neutrality requirements similar to those in the 2015
Open Internet Order.Open Internet Order.~~164~~163 Other laws or executive orders—such as those of Vermont and New Other laws or executive orders—such as those of Vermont and New
York—would prohibit state agencies or instrumentalities from contracting with BIAS providers York—would prohibit state agencies or instrumentalities from contracting with BIAS providers
unless they certify they comply with net neutrality principles.unless they certify they comply with net neutrality principles.~~165~~164
Some of these state net neutrality laws are subject to legal challenges. In particular, BIAS Some of these state net neutrality laws are subject to legal challenges. In particular, BIAS
providers have brought legal actions in federal district courts arguing that the 2018 RIF Order providers have brought legal actions in federal district courts arguing that the 2018 RIF Order
preempts California’s and Vermont’s laws.preempts California’s and Vermont’s laws.~~166~~165 Courts have not yet passed judgment on these Courts have not yet passed judgment on these
challenges. However, on February 23, 2021, the district court overseeing challenges to challenges. However, on February 23, 2021, the district court overseeing challenges to
California’s law rejected the plaintiffs’ motion for a preliminary injunction, thus allowing the law California’s law rejected the plaintiffs’ motion for a preliminary injunction, thus allowing the law
to go into effect.to go into effect.~~167~~166 Furthermore, on July 7, 2020, in a case that could be a bellwether for these Furthermore, on July 7, 2020, in a case that could be a bellwether for these
state net neutrality cases, a federal district court rejected arguments that the 2018 RIF Order state net neutrality cases, a federal district court rejected arguments that the 2018 RIF Order
preempted a Maine law imposing privacypreempted a Maine law imposing privacy requirements on BIAS providers.requirements on BIAS providers.~~168~~167 The plaintiffs The plaintiffs
argued that Maine’s law conflicted with the policy established by the 2018 RIF Order that the argued that Maine’s law conflicted with the policy established by the 2018 RIF Order that the
“best way to protect consumers’ privacy interest without imposing costly burdens on [internet “best way to protect consumers’ privacy interest without imposing costly burdens on [internet
service providers] is to pair mandatory privacy disclosures with FTC enforcement of those service providers] is to pair mandatory privacy disclosures with FTC enforcement of those
disclosures.”disclosures.”~~169 However, the~~168 The court rejected this argument, reasoning that the Order “is not an court rejected this argument, reasoning that the Order “is not an
instance of affirmative deregulation,” but instead was the FCC’s decision “that it lacked authority instance of affirmative deregulation,” but instead was the FCC’s decision “that it lacked authority
to regulate in the first place and would defer to the FTC’s enforcement of existing antitrust and to regulate in the first place and would defer to the FTC’s enforcement of existing antitrust and
consumer protection laws.”consumer protection laws.”~~170~~169 Even assuming that an “abdication of authority” could result in Even assuming that an “abdication of authority” could result in
preemption, the court said that plaintiffs failed to identify “any conflict between the FCC’s preemption, the court said that plaintiffs failed to identify “any conflict between the FCC’s
proclamation that the FTC is the proper federal regulator of ISPs, and Maine’s decision to impose proclamation that the FTC is the proper federal regulator of ISPs, and Maine’s decision to impose
privacy protections at the state level.”privacy protections at the state level.”~~171~~170 While this case dealt with state-level privacy While this case dealt with state-level privacy
requirements, courts weighing challenges to state net neutrality laws might take a similar requirements, courts weighing challenges to state net neutrality laws might take a similar
approach, concluding that the 2018 RIF Order cannot preempt state laws because it is an approach, concluding that the 2018 RIF Order cannot preempt state laws because it is an
“abdication,” rather than an affirmative assertion, of authority.“abdication,” rather than an affirmative assertion, of authority.~~172~~171 On the other hand, the argument On the other hand, the argument
that state net neutrality laws conflict with the 2018 RIF Order may be stronger than in the privacy that state net neutrality laws conflict with the 2018 RIF Order may be stronger than in the privacy
context, since these laws generally re-impose the same requirements the Order removed. context, since these laws generally re-impose the same requirements the Order removed.
Courts may be even less likely to hold that the 2018 RIF Order preempts state laws that only Courts may be even less likely to hold that the 2018 RIF Order preempts state laws that only
prohibit state agencies and subdivisions from contracting with BIAS providers unless they abide prohibit state agencies and subdivisions from contracting with BIAS providers unless they abide
by net neutrality requirements. As discussed in more detail below, the Supreme Court has said by net neutrality requirements. As discussed in more detail below, the Supreme Court has said
that Congress needs to make a “plain statement” in order to preempt state law in a way that would infringe on states’ management of their own officers and subdivisions.172
~~164~~163 California Internet Consumer Protection and Net Neutrality Act of 2018, CAL. CIV. CODE §§ 3100–3104 (2018); California Internet Consumer Protection and Net Neutrality Act of 2018, CAL. CIV. CODE §§ 3100–3104 (2018);
WASH. REV. CODE § 19.385.020 (2018). California’s lawWASH. REV. CODE § 19.385.020 (2018). California’s law ~~in fact~~ goes beyond the 2015 Open Internet Order by goes beyond the 2015 Open Internet Order by
prohibiting zero rating practices. CAL. CIV. CODE § 3101. prohibiting zero rating practices. CAL. CIV. CODE § 3101.
~~165~~164 VT. STAT. ANN. tit. 3, § 348 (2018); VT. STAT. ANN. tit. 3, § 348 (2018); id. tit. 3 app’x, § 3-85; N.Y. COMP. CODES R. & REGS. tit. 9, § 8.175 (2018). tit. 3 app’x, § 3-85; N.Y. COMP. CODES R. & REGS. tit. 9, § 8.175 (2018).
~~166~~165 Complaint, Am. Cable Ass’n v. Scott, No. 2:18-CV-00167 (D. Vt. Oct. 18, 2018); First Am. Compl., Am. Complaint, Am. Cable Ass’n v. Scott, No. 2:18-CV-00167 (D. Vt. Oct. 18, 2018); First Am. Compl., Am. Cable Cable
Ass’n v. Becerra, No. 2:18-CV-02684 (E.D. Cal. Aug. 5, 2020). While the U.S. Department Justice also sued to block Ass’n v. Becerra, No. 2:18-CV-02684 (E.D. Cal. Aug. 5, 2020). While the U.S. Department Justice also sued to block
California’s net neutrality law, it dropped this case on February 8, 2021. California’s net neutrality law, it dropped this case on February 8, 2021. See Pl.’s Notice of Dismissal, United States v. Pl.’s Notice of Dismissal, United States v.
California, 2:No. 18-cv-02660 (Feb. 8, 2021). California, 2:No. 18-cv-02660 (Feb. 8, 2021).
~~167~~166 Oral Ruling Den. Mot. for Prelim. Inj., Am. Cable Ass’n v. Becerra, No. 2:18-CV-02684 (E.D. Cal. Feb. 23, 2021). Oral Ruling Den. Mot. for Prelim. Inj., Am. Cable Ass’n v. Becerra, No. 2:18-CV-02684 (E.D. Cal. Feb. 23, 2021).
~~168~~167 ACA Connects v. Frey, No. 1:20-cv-00055 (D. Me. July 7, 2020). ACA Connects v. Frey, No. 1:20-cv-00055 (D. Me. July 7, 2020).
~~169~~168 Id. at *9. at *9.
~~170~~169 Id.
~~171~~170 Id. at *10. at *10.
172 Id.
171 Id. 172 Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004) (“[T]he liberating preemption would come only by Congressional Research Service Congressional Research Service
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~~that Congress needs to make a “plain statement” in order to preempt state law in a way that would~~
~~infringe on states’ management of their own officers and subdivisions.173~~
Aside from legal challenges, Congress might weigh in on the dispute surrounding net neutrality Aside from legal challenges, Congress might weigh in on the dispute surrounding net neutrality
and preemption. While no bills have yet been introduced that would expressly give the FCC and preemption. While no bills have yet been introduced that would expressly give the FCC
authority for the broad preemption that was struck down in authority for the broad preemption that was struck down in Mozilla, some bills from the 116th , some bills from the 116th
Congress would have established statutory net neutrality requirements. In particular, the Save the Congress would have established statutory net neutrality requirements. In particular, the Save the
Internet Act—which passed the U.S. House of Representatives and was not taken up in the U.S. Internet Act—which passed the U.S. House of Representatives and was not taken up in the U.S.
Senate—would have repealed the 2018 RIF Order and “restore[d]” the 2015 Open Internet Senate—would have repealed the 2018 RIF Order and “restore[d]” the 2015 Open Internet
Order.Order.~~174~~173 Restoring the 2015 Open Internet Order would not necessarily preempt existing state net Restoring the 2015 Open Internet Order would not necessarily preempt existing state net
neutrality laws, though. In that order, the FCC declined to preempt the field of net neutrality neutrality laws, though. In that order, the FCC declined to preempt the field of net neutrality
regulation, opting instead to determine whether any state laws conflict with the order’s “carefully regulation, opting instead to determine whether any state laws conflict with the order’s “carefully
tailored regulatory scheme” on a case-by-case basis.tailored regulatory scheme” on a case-by-case basis.~~175~~174 Other bills, such as H.R. 1101, H.R. 1006, Other bills, such as H.R. 1101, H.R. 1006,
H.R. 2136, and H.R. 1096 would have taken a different approach than the Save the Internet H.R. 2136, and H.R. 1096 would have taken a different approach than the Save the Internet
Act.Act.~~176~~175 These bills would have amended Title I to include net neutrality requirements, such as These bills would have amended Title I to include net neutrality requirements, such as
prohibitions on blocking or throttling lawful internet traffic, and given the FCC limited regulatory prohibitions on blocking or throttling lawful internet traffic, and given the FCC limited regulatory
and enforcement authority to implement the requirements.and enforcement authority to implement the requirements.~~177~~176 While some of these bills were silent While some of these bills were silent
on the preemption of state law, H.R. 2136 would have expressly preempted state laws “relating to on the preemption of state law, H.R. 2136 would have expressly preempted state laws “relating to
or with respect to internet openness obligations for provision of broadband internet access or with respect to internet openness obligations for provision of broadband internet access
service.”service.”~~178~~177
Voice over Internet Protocol (VoIP)
Similar to its approach to internet access itself, the FCC has taken a hands off approach to Similar to its approach to internet access itself, the FCC has taken a hands off approach to
regulating internet enabled communications—most notably VoIP, which enables users to make regulating internet enabled communications—most notably VoIP, which enables users to make
voice calls using the internet. As discussed further below, the FCC has not clearly taken a position voice calls using the internet. As discussed further below, the FCC has not clearly taken a position
on whether VoIP is a telecommunications service or an information service. However, it has on whether VoIP is a telecommunications service or an information service. However, it has

~~173 Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004) (“[T]he liberating preemption would come only by~~
nonetheless used its ancillary authority to impose some requirements on VoIP services, and it has interposing federal authority between a State and its municipal subdivisions . . . . Hence the need to invoke our working interposing federal authority between a State and its municipal subdivisions . . . . Hence the need to invoke our working
assumption that federal legislation threatening to trench on the States’ arrangements for conducting their own assumption that federal legislation threatening to trench on the States’ arrangements for conducting their own
governments should be treated with great skepticism, and read in a way that preserves a State’s chosen disposition of its governments should be treated with great skepticism, and read in a way that preserves a State’s chosen disposition of its
own power, in the absence of the plain statement Gregory requires.”); own power, in the absence of the plain statement Gregory requires.”); see “Nixon v. Missouri Municipal League,”
infra, for more discussion. for more discussion.
~~174~~173 H.R. 1644, 116th Cong. (2019); S. 682, 116th Cong. (2019). H.R. 1644, 116th Cong. (2019); S. 682, 116th Cong. (2019).
~~175~~174 2015 Open Internet Order, 30 FCC Rcd. at 19810, para. 432. 2015 Open Internet Order, 30 FCC Rcd. at 19810, para. 432.
~~176~~175 H.R. 1101, 116th Cong. (2019); H.R. 1006, 116th Cong. (2019); H.R. 2136, 116th Cong. (2019); H.R. 1096, 116th H.R. 1101, 116th Cong. (2019); H.R. 1006, 116th Cong. (2019); H.R. 2136, 116th Cong. (2019); H.R. 1096, 116th
Cong. (2019). Cong. (2019).
~~177~~176 H.R. 1101, 116th Cong. § 1 (2019) (“The Commission shall enforce the obligations established in subsection (a) H.R. 1101, 116th Cong. § 1 (2019) (“The Commission shall enforce the obligations established in subsection (a)
through adjudication of complaints alleging violations of such subsection but may not expand the internet openness through adjudication of complaints alleging violations of such subsection but may not expand the internet openness
obligations for provision of broadband internet access service beyond the obligations established in such subsection, obligations for provision of broadband internet access service beyond the obligations established in such subsection,
whether by rulemaking or otherwise.”); H.R. 1006, 116th Cong. § 2 (2019) (giving the Commission authority to whether by rulemaking or otherwise.”); H.R. 1006, 116th Cong. § 2 (2019) (giving the Commission authority to
promulgate rules implementing disclosure requirements under the bill and directing the Commission to enforce the promulgate rules implementing disclosure requirements under the bill and directing the Commission to enforce the
duties under the law “through adjudication of a complaint alleging that a service violates one or more such duties” but duties under the law “through adjudication of a complaint alleging that a service violates one or more such duties” but
prohibiting the FCC from imposing “regulations on broadband internet access service or any component thereof under prohibiting the FCC from imposing “regulations on broadband internet access service or any component thereof under
title II”); H.R. 2136, 116th Cong. § 2 (2019) (“The Commission shall enforce [the law’s obligations] through title II”); H.R. 2136, 116th Cong. § 2 (2019) (“The Commission shall enforce [the law’s obligations] through
adjudication of complaints alleging violations . . . but may not, under any provision of law, whether by rulemaking or adjudication of complaints alleging violations . . . but may not, under any provision of law, whether by rulemaking or
otherwise—(A) expand the internet openness obligations for provision of broadband internet access service beyond the otherwise—(A) expand the internet openness obligations for provision of broadband internet access service beyond the
obligations established in [this law]; or (B) expand the internet openness obligations for the offering or provision of obligations established in [this law]; or (B) expand the internet openness obligations for the offering or provision of
specialized services beyond the obligations established in [this law].”); H.R. 1096, 116th Cong. § 2 (2019) (amending specialized services beyond the obligations established in [this law].”); H.R. 1096, 116th Cong. § 2 (2019) (amending
Title I to include transparency requirements and prohibitions on blocking, impairment and degradation, and paid Title I to include transparency requirements and prohibitions on blocking, impairment and degradation, and paid
prioritization). prioritization).
~~178~~177 H.R. 2136, 116th Cong. § 2 (2019). H.R. 2136, 116th Cong. § 2 (2019).
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~~nonetheless used its ancillary authority to impose some requirements on VoIP services, and it has~~
preempted state laws that would impose more regulations.preempted state laws that would impose more regulations.~~179~~178 Courts have, thus far, upheld the Courts have, thus far, upheld the
FCC’s preemption of such state laws.FCC’s preemption of such state laws.~~180~~179
Background
The FCC first addressed the rise of “IP-enabled services” in a Notice of Proposed Rulemaking The FCC first addressed the rise of “IP-enabled services” in a Notice of Proposed Rulemaking
issued on March 10, 2004.issued on March 10, 2004.~~181~~180 In this notice, the Commission observed that services and In this notice, the Commission observed that services and
applications provided over the internet were becoming competitive with, and potentially applications provided over the internet were becoming competitive with, and potentially
replacing, services traditionally provided by incumbent telecommunications carriers.replacing, services traditionally provided by incumbent telecommunications carriers.~~182~~181 Since Since
issuing its Notice of Proposed Rulemaking, the Commission has relied on its ancillary authority issuing its Notice of Proposed Rulemaking, the Commission has relied on its ancillary authority
to extend several Title II requirements to VoIP service providers when the service interfaces with to extend several Title II requirements to VoIP service providers when the service interfaces with
the Public Switched Telephone Network.the Public Switched Telephone Network.~~183~~182 Most recently, on December 13, 2019, the FCC issued Most recently, on December 13, 2019, the FCC issued
a notice seeking comment on whether truth-in-billing requirements should extend to VoIP a notice seeking comment on whether truth-in-billing requirements should extend to VoIP
providers.providers.~~184~~183 Since issuing its first notice, the FCC has not affirmatively classified VoIP as either a Since issuing its first notice, the FCC has not affirmatively classified VoIP as either a
“telecommunications service” or an “information service,” instead relying on VoIP’s interstate “telecommunications service” or an “information service,” instead relying on VoIP’s interstate
nature and the Commission’s various statutory responsibilities to regulate VoIP through its nature and the Commission’s various statutory responsibilities to regulate VoIP through its
ancillary authority.ancillary authority.~~185~~184
State Action and Legal Challenges
As discussed, the Communications Act creates a model of “dual federalism” over the nation’s As discussed, the Communications Act creates a model of “dual federalism” over the nation’s
communications networks. To the extent the FCC relies on its ancillary authority, it may not communications networks. To the extent the FCC relies on its ancillary authority, it may not
regulate purely intrastate communications, which remain the province of the states.regulate purely intrastate communications, which remain the province of the states.~~186~~185 However, However,
under the FCC’s “impossibility exception,” the FCC may use its ancillary authority to displace under the FCC’s “impossibility exception,” the FCC may use its ancillary authority to displace
state regulation when state regulation affects both intrastate and interstate communications and state regulation when state regulation affects both intrastate and interstate communications and
distinguishing between intrastate and interstate effects is impossible or impractical.distinguishing between intrastate and interstate effects is impossible or impractical.~~187~~186
Some states have addressed VoIP through regulation. In 2005, Florida became the first state to Some states have addressed VoIP through regulation. In 2005, Florida became the first state to
deregulate VoIP.deregulate VoIP.~~188~~187 In 2003, conversely, the Minnesota Public Utilities Commission issued an In 2003, conversely, the Minnesota Public Utilities Commission issued an order requiring Vonage, a VoIP provider, to comply with state common carrier regulations.188

~~179~~178 Vonage Holdings Corp., 19 FCC Rcd. 22404, 22411, para. 14 (2004) (relying on “impossibility” preemption to Vonage Holdings Corp., 19 FCC Rcd. 22404, 22411, para. 14 (2004) (relying on “impossibility” preemption to
preempt a state regulatory order). preempt a state regulatory order).
~~180~~179 See Vonage Holdings Corp. v. Neb. Pub. Serv. Comm’n, 564 F.3d 900, 904 (8th Cir. 2009); Charter Advanced Vonage Holdings Corp. v. Neb. Pub. Serv. Comm’n, 564 F.3d 900, 904 (8th Cir. 2009); Charter Advanced
Servs. (MN) LLC v. Lange, 903 F.3d 715, 719 (8th Cir. 2018). Servs. (MN) LLC v. Lange, 903 F.3d 715, 719 (8th Cir. 2018).
~~181~~180 IP-Enabled Services, 19 FCC Rcd. 4863 (2004). IP-Enabled Services, 19 FCC Rcd. 4863 (2004).
~~182~~181 See id. at 4865–67. at 4865–67.
~~183~~182 E.g., IP-Enabled Services, E911 Requirements for IP-Enabled Service Providers, 20 FCC Rcd. 10245 (2005) , IP-Enabled Services, E911 Requirements for IP-Enabled Service Providers, 20 FCC Rcd. 10245 (2005)
(requiring VoIP providers to supply 911 emergency calling capabilities); Universal Service Contribution Methodology, (requiring VoIP providers to supply 911 emergency calling capabilities); Universal Service Contribution Methodology,
21 FCC Rcd. 7518 (establishing universal service contribution obligations for VoIP providers); Implementation of the 21 FCC Rcd. 7518 (establishing universal service contribution obligations for VoIP providers); Implementation of the
Telecommunications Act of 1996, 22 FCC Rcd. 6927 (2007) (extending consumer privacy requirements to VoIP Telecommunications Act of 1996, 22 FCC Rcd. 6927 (2007) (extending consumer privacy requirements to VoIP
providers); IP-Enabled Services, 22 FCC Rcd. 11275 (2007) (extending Telecommunications Relay Service providers); IP-Enabled Services, 22 FCC Rcd. 11275 (2007) (extending Telecommunications Relay Service
requirements to VoIP providers). requirements to VoIP providers).
~~184~~183 Consumer and Governmental Affairs Bureau Seeks to Refresh the Record on Truth-In-Billing Rules To Ensure
Protections for All Consumers of Voice Services, FED. COMMC’NS COMM’N (Dec. 13, 2019), , FED. COMMC’NS COMM’N (Dec. 13, 2019),
https://ecfsapi.fcc.gov/file/1213540824304/DA-19-1271A1.pdf. https://ecfsapi.fcc.gov/file/1213540824304/DA-19-1271A1.pdf.
~~185~~184 See “State Action and Legal Challenges” infra. .
~~186~~185 See “The FCC’s Jurisdictional Authority” for more discussion of “impossibility” preemption. for more discussion of “impossibility” preemption.
~~187~~186 Id.
~~188~~187 FLA. STAT. ANN. § 364.01(3) (2011); FLA. STAT. ANN. § 364.01(3) (2011); id. § 364.011(3). § 364.011(3).
188 In re Complaint of the Minn. Dep’t of Commerce Against Vonage Holding Corp Regarding Lack of Authority to Congressional Research Service Congressional Research Service
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~~order requiring Vonage, a VoIP provider, to comply with state common carrier regulations.189~~
Vonage petitioned the FCC for review of Minnesota’s order, and the FCC issued an order (Vonage Vonage petitioned the FCC for review of Minnesota’s order, and the FCC issued an order (Vonage
Order) on November 12, 2004 concluding that Vonage was not subject to Minnesota’s common Order) on November 12, 2004 concluding that Vonage was not subject to Minnesota’s common
carrier regulations.carrier regulations.~~190~~189 The FCC reached this conclusion under its theory of “impossibility” The FCC reached this conclusion under its theory of “impossibility”
preemption, stating that intrastate communications made over VoIP were practically preemption, stating that intrastate communications made over VoIP were practically
indistinguishable from interstate communications.indistinguishable from interstate communications.~~191~~190 The FCC further noted that state regulation The FCC further noted that state regulation
of VoIP directly conflicted with the FCC’s “pro-competitive deregulatory rules and policies.”of VoIP directly conflicted with the FCC’s “pro-competitive deregulatory rules and policies.”~~192~~191
This would be true regardless of whether VoIP were classified as an “information service” or a This would be true regardless of whether VoIP were classified as an “information service” or a
“telecommunications service.”“telecommunications service.”~~193~~192 Minnesota challenged the FCC’s order in federal court, where Minnesota challenged the FCC’s order in federal court, where
the Eighth Circuit upheld the order on the grounds that the FCC’s exercise of “impossibility” the Eighth Circuit upheld the order on the grounds that the FCC’s exercise of “impossibility”
preemption was not arbitrary or capricious.preemption was not arbitrary or capricious.~~194~~193
Because the FCC has declined to classify VoIP as either a telecommunications service or an Because the FCC has declined to classify VoIP as either a telecommunications service or an
information serviceinformation service, and has instead relied on its ancillary authority and “impossibility” and has instead relied on its ancillary authority and “impossibility”
preemption to displace state action, states have continually pushed the boundaries of permissible preemption to displace state action, states have continually pushed the boundaries of permissible
state regulation. For example, Nebraska attempted to require VoIP providers to collect state state regulation. For example, Nebraska attempted to require VoIP providers to collect state
Universal Service Fund fees, arguing that the Vonage Order preempted only “traditional Universal Service Fund fees, arguing that the Vonage Order preempted only “traditional
telephone company” regulations.telephone company” regulations.~~195~~194 However, federal courts routinely affirm the FCC’s power to However, federal courts routinely affirm the FCC’s power to
preempt these regulations using “impossibility” preemption.preempt these regulations using “impossibility” preemption.~~196~~195 By contrast, at least one federal By contrast, at least one federal
court has taken a different approach. In court has taken a different approach. In Charter Advanced Services (MN) LLC v. Lange, the , the
Eighth Circuit held that VoIP is an “information service” under the Communications Act and is Eighth Circuit held that VoIP is an “information service” under the Communications Act and is
therefore not subject to Title II regulation.therefore not subject to Title II regulation.~~197~~196 The court then restated an earlier conclusion of the The court then restated an earlier conclusion of the
Eighth Circuit—that “any state regulation of an information service conflicts with the federal Eighth Circuit—that “any state regulation of an information service conflicts with the federal
policy of nonregulation”—in holding that because VoIP is an information service, no state policy of nonregulation”—in holding that because VoIP is an information service, no state
regulation would stand.regulation would stand.~~198~~197
As discussed As discussed supra, the, the FCC attempted to preempt state regulation of another “information FCC attempted to preempt state regulation of another “information
service” in its 2018 RIF Order to no avail.service” in its 2018 RIF Order to no avail.~~199~~198 The FCC’s bases for preemption invalidated in The FCC’s bases for preemption invalidated in
Mozilla v. FCC closely track those articulated in the VoIP context: the “federal policy of closely track those articulated in the VoIP context: the “federal policy of
deregulation for information services” and “impossibility” preemption.deregulation for information services” and “impossibility” preemption.~~200~~199 When the Supreme When the Supreme
Court denied review in Court denied review in Charter Advanced Services, Justice Clarence Thomas authored a , Justice Clarence Thomas authored a
concurrence to express his doubt that a federal policy of nonregulation could preempt state concurrence to express his doubt that a federal policy of nonregulation could preempt state

~~189 In re Complaint of the Minn. Dep’t of Commerce Against Vonage Holding Corp Regarding Lack of Authority to~~
regulation.200 Justice Thomas explained that the constitutional source of preemption authority, the Operate in Minn., No. P-6214/C-03-108, 2003 WL 22336092 (Minn. P.U.C. Operate in Minn., No. P-6214/C-03-108, 2003 WL 22336092 (Minn. P.U.C. ~~Sep~~Sept. 11, 2003), . 11, 2003), enjoined by Vonage Vonage
Holdings Corp. v. Minn. Pub. Utils. Comm’n, 290 F. Supp. 2d 993 (D. Minn. 2003). Holdings Corp. v. Minn. Pub. Utils. Comm’n, 290 F. Supp. 2d 993 (D. Minn. 2003).
~~190~~189 Vonage Holdings Corp., 19 FCC Rcd. 22404 (2004). Vonage Holdings Corp., 19 FCC Rcd. 22404 (2004).
~~191~~190 See id. at 22412, para. 15. at 22412, para. 15.
~~192~~191 Id. at 22415, para. 20. at 22415, para. 20.
~~193~~192 Id. at 22415–17, paras. 20–22. at 22415–17, paras. 20–22.
~~194~~193 Minn. Pub. Utils. Comm’n v. FCC, 483 F.3d 570, 578–79 (8th Cir. 2007). Minn. Pub. Utils. Comm’n v. FCC, 483 F.3d 570, 578–79 (8th Cir. 2007).
~~195~~194 Vonage Holdings Corp. v. Neb. Pub. Serv. Comm’n, 564 F.3d 900, 904 (8th Cir. 2009) (preempting state Vonage Holdings Corp. v. Neb. Pub. Serv. Comm’n, 564 F.3d 900, 904 (8th Cir. 2009) (preempting state
regulation). regulation).
~~196~~195 See, e.g., , id.; N.M. Pub. Regulation Comm’n v. Vonage Holdings Corp., 640 F. Supp. 2d 1359, 1370 (D.N.M. 2009) ; N.M. Pub. Regulation Comm’n v. Vonage Holdings Corp., 640 F. Supp. 2d 1359, 1370 (D.N.M. 2009)
(dismissing declaratory judgment action by state requiring Vonage to pay into New Mexico Universal Service Fund). (dismissing declaratory judgment action by state requiring Vonage to pay into New Mexico Universal Service Fund).
~~197~~196 903 F.3d 715, 719 (8th Cir. 2018). 903 F.3d 715, 719 (8th Cir. 2018).
~~198~~197 Id. (quoting (quoting Minn. Pub. Utils. Comm’n, 483 F.3d at 580). , 483 F.3d at 580).
~~199~~198 See “Net Neutrality.”
~~200~~199 Compare Mozilla v. FCC, 904 F.3d 1, 76–80 (D.C. Cir. 2019) Mozilla v. FCC, 904 F.3d 1, 76–80 (D.C. Cir. 2019) with Charter Adv. Servs., 903 F.3d at 719; , 903 F.3d at 719; see also
Minn. Pub. Utils. Comm’n, 483 F.3d at 576. , 483 F.3d at 576.
200 Lipschultz v. Charter Adv. Servs. (MN), LLC, 140 S. Ct. 6 (2019) (Thomas, J., concurring). Congressional Research Service Congressional Research Service
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Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act

~~regulation.201 Justice Thomas explained that the constitutional source of preemption authority, the~~
Supremacy Clause, “requires that pre-emptive [sic]Supremacy Clause, “requires that pre-emptive [sic] effect be given only to those federal standards effect be given only to those federal standards
and policies that are set forth in, or necessarily flow from, the statutory text that was produced and policies that are set forth in, or necessarily flow from, the statutory text that was produced
through the constitutionally required bicameral and presentment procedures.”through the constitutionally required bicameral and presentment procedures.”~~202~~201 Consequently, Consequently,
allowing an agency policy of nonregulation to have preemptive effect “authorizes the Executive allowing an agency policy of nonregulation to have preemptive effect “authorizes the Executive
to make ‘Law’ by declining to act, and it authorizes the courts to conduct ‘a freewheeling judicial to make ‘Law’ by declining to act, and it authorizes the courts to conduct ‘a freewheeling judicial
inquiry’ into the facts of federal nonregulation.”inquiry’ into the facts of federal nonregulation.”~~203~~202
However, VoIP differs from BIAS in that VoIP services frequently use telephone numbers and However, VoIP differs from BIAS in that VoIP services frequently use telephone numbers and
connect users to traditional telecommunications networks. On this basis, the FCC has relied on its connect users to traditional telecommunications networks. On this basis, the FCC has relied on its
ancillary authority to affirmatively regulate VoIP providers, in contrast to its approach to BIAS.ancillary authority to affirmatively regulate VoIP providers, in contrast to its approach to BIAS.~~204~~203
Whereas the Whereas the Mozilla court did not find BIAS to fall under any FCC jurisdictional authority absent court did not find BIAS to fall under any FCC jurisdictional authority absent
a classification as a Title II “telecommunications service,” the FCC has repeatedly relied on its a classification as a Title II “telecommunications service,” the FCC has repeatedly relied on its
ancillary jurisdiction to regulate VoIP without facing legal challenges for doing so.ancillary jurisdiction to regulate VoIP without facing legal challenges for doing so.~~205~~204
Wireless Facility Siting for Fifth Generation (5G) Networks
Preemption has also played a leading part in the FCC’s efforts to speed the deployment of fifth Preemption has also played a leading part in the FCC’s efforts to speed the deployment of fifth
generation (5G) wireless infrastructure. The infrastructure necessary to support 5G wireless generation (5G) wireless infrastructure. The infrastructure necessary to support 5G wireless
networks involves the placement of “small cell” wireless equipment on existing structures, networks involves the placement of “small cell” wireless equipment on existing structures,
including municipally owned property. In 2018, the FCC acted to preempt state and local including municipally owned property. In 2018, the FCC acted to preempt state and local
authority to regulate the placement of small cells when such regulations “materially inhibit” the authority to regulate the placement of small cells when such regulations “materially inhibit” the
deployment of 5G infrastructure. The Commission also set “shot clocks” that control the deployment of 5G infrastructure. The Commission also set “shot clocks” that control the
timeframe in which local governments must review applications for small cell siting. In 2020, the timeframe in which local governments must review applications for small cell siting. In 2020, the
FCC clarified its rules requiring state and local governments to approve requests to modify FCC clarified its rules requiring state and local governments to approve requests to modify
existing wireless facilities when the modification “does not substantially change the physical existing wireless facilities when the modification “does not substantially change the physical
dimensions” of the facility. These regulatory actions have been challenged in federal courts by dimensions” of the facility. These regulatory actions have been challenged in federal courts by
municipalities and public utilities, and while the Ninth Circuit largely upheld the FCC’s 2018 municipalities and public utilities, and while the Ninth Circuit largely upheld the FCC’s 2018
actions, litigation concerning the 2020 action is still ongoing, with proceedings stayed until actions, litigation concerning the 2020 action is still ongoing, with proceedings stayed until ~~July~~
~~2021.206~~November 2021.205
Technical Background
Mobile wireless services function by transmitting information between devices over radio waves Mobile wireless services function by transmitting information between devices over radio waves
through a network of antennae and similar equipment. Each node in these networks is a through a network of antennae and similar equipment. Each node in these networks is a cell site: a : a

~~201 Lipschultz v. Charter Adv. Servs. (MN), LLC, 140 S. Ct. 6 (2019) (Thomas, J., concurring).~~
~~202~~collection of communications equipment capable of receiving and transmitting wireless signals over a given area (a cell). In legacy networks (e.g., 3G, 4G), telecommunication providers use macro cell sites (e.g., tall towers, antennas, radio equipment) to provide coverage over wide areas. 5G networks leverage 201 Id. at 7 (quoting Wyeth v. Levine, 555 U.S. 555, 586 (2009) (Thomas, J., concurring). at 7 (quoting Wyeth v. Levine, 555 U.S. 555, 586 (2009) (Thomas, J., concurring).
~~203~~202 Id. at 7–8 (quoting at 7–8 (quoting Wyeth, 555 U.S. at 588 (Thomas, J., concurring). Justice Thomas nonetheless concurred in the , 555 U.S. at 588 (Thomas, J., concurring). Justice Thomas nonetheless concurred in the
denial of certiorari because the petition did not raise the basis of preemption. denial of certiorari because the petition did not raise the basis of preemption. Id.
~~204~~203 See, e.g., 47 CFR § 9.11 (requiring interconnected VoIP service providers to provide 911 service); 47 CFR § 54.706 , 47 CFR § 9.11 (requiring interconnected VoIP service providers to provide 911 service); 47 CFR § 54.706
(requiring interconnected VoIP providers to contribute to federal universal service support mechanisms); 47 CFR (requiring interconnected VoIP providers to contribute to federal universal service support mechanisms); 47 CFR
§ 64.604 (requiring VoIP contributions to Telecommunications Relay Service fund). § 64.604 (requiring VoIP contributions to Telecommunications Relay Service fund).
~~205~~204 E.g., IP-Enabled Services E911 Requirements for IP-Enabled Service Providers, 20 FCC Rcd. 10245, 10261, IP-Enabled Services E911 Requirements for IP-Enabled Service Providers, 20 FCC Rcd. 10245, 10261~~-10266~~–66, ,
paras. 26-35 (2005). paras. 26-35 (2005).
~~206~~205 See City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020) (upholding all of the FCC’s requirements City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020) (upholding all of the FCC’s requirements
except for its aesthetic requirements); Order, League of Cal. Cities v. FCC, No. 20-71765 (9th Cir. except for its aesthetic requirements); Order, League of Cal. Cities v. FCC, No. 20-71765 (9th Cir. ~~Mar. 19~~July 28, 2021), , 2021),
ECF No. ECF No. 5963 (granting FCC’s motion to stay the proceedings). Congressional Research Service 22 link to page 9 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act ~~(granting FCC’s motion to stay the proceedings). In addition to this ongoing challenge, several~~
~~municipalities have petitioned the Supreme Court to review the Ninth Circuit’s decision pertaining to the FCC’s 2018~~
~~action. Pet. for Writ of Certiorari, City of Portland v. FCC, No. 20-1354 (U.S. Mar. 22, 2021).~~
~~Congressional Research Service~~
22

~~link to page 9~~ ~~Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act~~

~~collection of communications equipment capable of receiving and transmitting wireless signals~~
~~over a given area (a cell).~~
~~In legacy networks (e.g., 3G, 4G), telecommunication providers use macro cell sites (e.g., tall~~
~~towers, antennas, radio equipment) to provide coverage over wide areas. 5G networks leverage~~
4G macro cell sites but also rely on “small cells” with coverage areas of hundreds of feet.4G macro cell sites but also rely on “small cells” with coverage areas of hundreds of feet.~~207~~
206 Because the coverage area is small, an effective 5G network requires placement of a large number Because the coverage area is small, an effective 5G network requires placement of a large number
of cell sites in close proximity to each other. These small cell sites are much smaller than those of cell sites in close proximity to each other. These small cell sites are much smaller than those
that support extant wireless networks and may therefore be attached to existing structures, rather that support extant wireless networks and may therefore be attached to existing structures, rather
than requiring construction of freestanding macro cell towers.than requiring construction of freestanding macro cell towers.~~208~~207
State and Local Authority
Constructing wireless facilities or attaching wireless equipment to existing structures generally Constructing wireless facilities or attaching wireless equipment to existing structures generally
requires some sort of government approval depending on who controls the site of construction. requires some sort of government approval depending on who controls the site of construction.
With the exception of federal lands, state or local authorities manage construction projects. For With the exception of federal lands, state or local authorities manage construction projects. For
cell site projects, typical state and local concerns include historical preservation, environmental cell site projects, typical state and local concerns include historical preservation, environmental
protection, public safety, accessibility requirements, and aesthetics.protection, public safety, accessibility requirements, and aesthetics.~~209~~208
To date, a number of states have passed or proposed legislation to speed up the permitting process To date, a number of states have passed or proposed legislation to speed up the permitting process
for small cell deployment.for small cell deployment.~~210~~209 These laws generally address this objective by placing time limits These laws generally address this objective by placing time limits
(or “shot clocks”) on application processing and limiting or capping fees charged by local (or “shot clocks”) on application processing and limiting or capping fees charged by local
authorities for small cell site applications.authorities for small cell site applications.~~211~~210
FCC Statutory Authority and Procedure
Two provisions of the Communications Act—Sections 253 and 332—address how FCC authority Two provisions of the Communications Act—Sections 253 and 332—address how FCC authority
over interstate communications intersects with local land use authority. First, Section 253 permits over interstate communications intersects with local land use authority. First, Section 253 permits
the FCC to preempt enforcement of any act of state or local government that “prohibit[s] or ha[s] the FCC to preempt enforcement of any act of state or local government that “prohibit[s] or ha[s]
the effect of prohibiting the ability of any entity to provide any interstate or intrastate the effect of prohibiting the ability of any entity to provide any interstate or intrastate
telecommunications service.”telecommunications service.”~~212~~211 It contains two exceptions, however. First, Section 253(b) It contains two exceptions, however. First, Section 253(b)
provides that: provides that:
[n]othing in this section shall affect the ability of a State to impose, on a competitively [n]othing in this section shall affect the ability of a State to impose, on a competitively
neutral basis . . . requirements necessary to preserve and advance universal service, protect neutral basis . . . requirements necessary to preserve and advance universal service, protect
the public safety and welfare, ensure the continued quality of telecommunications services, the public safety and welfare, ensure the continued quality of telecommunications services,
and safeguard the rights of consumers.and safeguard the rights of consumers.~~213~~
212 Further, Section 253(c) reserves to state and local governments “the authority . . . to manage public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis” for use of such rights of way.213
~~207~~206 For further technical background, For further technical background, see CRS Report R45485, CRS Report R45485, Fifth-Generation (5G) Telecommunications
Technologies: Issues for Congress, by Jill C. Gallagher and Michael E. DeVine. , by Jill C. Gallagher and Michael E. DeVine.
~~208~~207 Small Cell Order, 33 FCC Rcd. 9088, 9089 para. 3 (2018); Small Cell Order, 33 FCC Rcd. 9088, 9089 para. 3 (2018); see also 47 CFR § 1.6002(l) (defining “small wireless 47 CFR § 1.6002(l) (defining “small wireless
facilities”). facilities”).
~~209~~208 See generally Municipal Action Guide: Small Cell Wireless Technology in Cities at 5, NAT’L LEAGUE OF CITIES at 5, NAT’L LEAGUE OF CITIES
(2018) (outlining potential issues faced by municipalities in managing small cell sites), https://www.nlc.org/(2018) (outlining potential issues faced by municipalities in managing small cell sites), https://www.nlc.org/~~sites/~~
~~default/files/2018-~~wp-content/uploads/2018/08/CS_SmallCell_MAG_FINAL.pdf. 08/CS_SmallCell_MAG_FINAL.pdf.
~~210~~209 See Michael T.N. Fitch, Michael T.N. Fitch, Legislation Streamlining Wireless Small Cell Deployment Enacted in 25 States, NAT’L L. , NAT’L L.
REV. (July 8, 2019), https://www.natlawreview.com/article/legislation-streamlining-wireless-small-cell-deployment-REV. (July 8, 2019), https://www.natlawreview.com/article/legislation-streamlining-wireless-small-cell-deployment-
enacted-25-states. enacted-25-states.
~~211~~210 E.g. COLO. REV. STAT. §§ 29-27-403, 38-5.5-108 (2020); DEL. CODE ANN. tit. 17 §§ 1605, 1609 (1974). COLO. REV. STAT. §§ 29-27-403, 38-5.5-108 (2020); DEL. CODE ANN. tit. 17 §§ 1605, 1609 (1974).
~~212~~211 47 U.S.C. § 253(a), (d); 47 U.S.C. § 253(a), (d); see “Overview of the FCC’s Preemption Authority Under the Communications Act.”
~~213~~212 Id. § 253(b). § 253(b).
213 Id. § 253(c). Congressional Research Service Congressional Research Service
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~~Further, Section 253(c) reserves to state and local governments “the authority . . . to manage~~
~~public rights-of-way or to require fair and reasonable compensation from telecommunications~~
~~providers, on a competitively neutral and nondiscriminatory basis” for use of such rights of~~
~~way.214~~
Similar to Section 253, Section 332 prohibits state and local governments from using local zoning Similar to Section 253, Section 332 prohibits state and local governments from using local zoning
authority in a manner that “prohibit[s] or ha[s] the effect of prohibiting the provision of wireless authority in a manner that “prohibit[s] or ha[s] the effect of prohibiting the provision of wireless
services.”services.”~~215~~214 It further prohibits state and local governments from “unreasonably discriminat[ing] It further prohibits state and local governments from “unreasonably discriminat[ing]
among providers of functionally equivalent services,” and it requires them to “act on any request among providers of functionally equivalent services,” and it requires them to “act on any request
for authorization to place, construct, or modify personal wireless service facilities within a for authorization to place, construct, or modify personal wireless service facilities within a
reasonable period of time.”reasonable period of time.”~~216~~215 Apart from these requirements and a few specific limitations, Apart from these requirements and a few specific limitations,~~217~~216
Section 332 preserves state and local authority over decisions regarding the “placement, Section 332 preserves state and local authority over decisions regarding the “placement,
construction, and modification of personal wireless service facilities.”construction, and modification of personal wireless service facilities.”~~218~~217
Both of these statutes provide mechanisms through which a party subject to a state or local Both of these statutes provide mechanisms through which a party subject to a state or local
requirement may challenge the requirement. Section 253 permits parties to file a petition with the requirement may challenge the requirement. Section 253 permits parties to file a petition with the
FCC to preempt enforcement of a requirement that violates the section.FCC to preempt enforcement of a requirement that violates the section.~~219~~218 Section 332 allows Section 332 allows
such a party to bring an action in federal court.such a party to bring an action in federal court.~~220~~219
In addition to these statutory provisions, Section 6409(a) of the Spectrum Act of In addition to these statutory provisions, Section 6409(a) of the Spectrum Act of ~~2012221~~2012220 requires requires
that state and local governments approve any request to modify an existing wireless facility “that that state and local governments approve any request to modify an existing wireless facility “that
does not substantially change the physical dimensions” of the facility.does not substantially change the physical dimensions” of the facility.~~222~~221 While this provision While this provision
does not direct the FCC to preempt state action or provide a mechanism for parties to challenge does not direct the FCC to preempt state action or provide a mechanism for parties to challenge
state action, as Sections 253 and 332 do, Section 6409(a) is enforced by the Commission and state action, as Sections 253 and 332 do, Section 6409(a) is enforced by the Commission and
therefore the Commission may promulgate regulations implementing it.therefore the Commission may promulgate regulations implementing it.~~223~~222
The FCC’s Orders
In 2018, the FCC issued two orders addressing state and local authority over small cell siting. The In 2018, the FCC issued two orders addressing state and local authority over small cell siting. The
first of these orders prohibits localities from instituting moratoria on processing applications first of these orders prohibits localities from instituting moratoria on processing applications
relating to telecommunications infrastructure deployment, including cell sites (Moratorium relating to telecommunications infrastructure deployment, including cell sites (Moratorium
Order).Order).~~224~~223 The second order clarifies the FCC’s position that a state or local requirement The second order clarifies the FCC’s position that a state or local requirement
“effectively prohibits” the provision of services articulated in Sections 253 and 332 when such “effectively prohibits” the provision of services articulated in Sections 253 and 332 when such
requirement “materially inhibits” the deployment of telecommunications facilities (Small Cell requirement “materially inhibits” the deployment of telecommunications facilities (Small Cell

~~214 Id. § 253(c).~~
~~215~~Order).224 In 2020, the FCC issued a declaratory ruling clarifying its rules implementing Section 6409(a) of the Spectrum Act (June 2020 Declaratory Ruling).225 Recognizing that 5G deployment 214 Id. § 332(c)(7)(B); § 332(c)(7)(B); see “Overview of the FCC’s Preemption Authority Under the Communications Act.”
~~216~~215 Id. §§ 332(c)(7)(B)(i)(II), 332(c)(7)(B)(ii). §§ 332(c)(7)(B)(i)(II), 332(c)(7)(B)(ii).
~~217~~216 Section 332 also prohibits state and local governments from “unreasonably discriminat[ing] among providers of Section 332 also prohibits state and local governments from “unreasonably discriminat[ing] among providers of
functionally equivalent services.”functionally equivalent services.” Id. § 332(c)(7)(B). State and local governments are also prohibited from regulating § 332(c)(7)(B). State and local governments are also prohibited from regulating
“the placement, construction, and modification of personal wireless service facilities on the basis of the environmental “the placement, construction, and modification of personal wireless service facilities on the basis of the environmental
effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations
concerning such emissions.” concerning such emissions.” Id. § 332(c)(7)(B)(iv). § 332(c)(7)(B)(iv).
~~218~~217 Id. § 332(c)(7)(A). § 332(c)(7)(A).
~~219~~218 Id. § 253(d); § 253(d); see also 47 CFR § 1.1. 47 CFR § 1.1.
~~220~~219 47 U.S.C. § 332(c)(7)(B)(v). 47 U.S.C. § 332(c)(7)(B)(v).
~~221~~220 Pub. L. No. 112-96, title VI, 126 Stat. 156, 232 (codified as 47 U.S.C. § 1455). Pub. L. No. 112-96, title VI, 126 Stat. 156, 232 (codified as 47 U.S.C. § 1455).
~~222~~221 47 U.S.C. § 1455(a). 47 U.S.C. § 1455(a).
~~223~~222 See 47 U.S.C. § 1403(a) (directing the FCC to implement and enforce the Spectrum Act “as if [it] is a part of the 47 U.S.C. § 1403(a) (directing the FCC to implement and enforce the Spectrum Act “as if [it] is a part of the
Communications Act of 1934”). Communications Act of 1934”).
~~224~~223 Moratorium Order, 33 FCC Rcd. 7705 (2018). Moratorium Order, 33 FCC Rcd. 7705 (2018).
~~Congressional Research Service~~
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~~Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act~~

~~Order).225 In 2020, the FCC issued a declaratory ruling clarifying its rules implementing Section~~
~~6409(a) of the Spectrum Act (June 2020 Declaratory Ruling).226 Recognizing that 5G deployment~~
224 Small Cell Order, 33 FCC Rcd. 9088 (2018). 225 Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests, 35 FCC Rcd. 5977 (2020) [hereinafter June 2020 Declaratory Ruling]; see also Acceleration of Broadband Deployment by Improving Wireless Siting Policies, 30 FCC Rcd. 31, 43, paras. 135–241 (2014) [hereinafter 2014 Congressional Research Service 24 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act will not depend solely on small cells, the June 2020 Declaratory Ruling addresses FCC will not depend solely on small cells, the June 2020 Declaratory Ruling addresses FCC
regulations governing state and local approval of modifications to existing wireless equipment.regulations governing state and local approval of modifications to existing wireless equipment.~~227~~226
The Moratorium Order
The FCCThe FCC made clear in the Moratorium Order in the Moratorium Order ~~made clear~~ that “explicit refusals to authorize deployment and that “explicit refusals to authorize deployment and
dilatory tactics that amount to dilatory tactics that amount to de facto refusals to allow deployment” of telecommunications refusals to allow deployment” of telecommunications
facilities violate Section 253.facilities violate Section 253.~~228~~227 The Commission focused both on “express moratoria”—written The Commission focused both on “express moratoria”—written
legal requirements that prevent or suspend the processing of permits and applications necessary legal requirements that prevent or suspend the processing of permits and applications necessary
for deploying wireless facilities—and “de facto moratoria” that effectively prevent or suspend for deploying wireless facilities—and “de facto moratoria” that effectively prevent or suspend
such processing but are not codified.such processing but are not codified.~~229~~228 Both express and de facto moratoria, the FCC observed, Both express and de facto moratoria, the FCC observed,
inherently violate Section 253 because such moratoria “prohibit or have the effect of prohibiting” inherently violate Section 253 because such moratoria “prohibit or have the effect of prohibiting”
deployment of facilities necessary to provide telecommunications service.deployment of facilities necessary to provide telecommunications service.~~230~~229 The Commission The Commission
rejected the argument that such moratoria do not violate Section 253 because they are time-rejected the argument that such moratoria do not violate Section 253 because they are time-
limited, noting that some localities impose “temporary” moratoria without definite end dates or limited, noting that some localities impose “temporary” moratoria without definite end dates or
continually extend such moratoria.continually extend such moratoria.~~231~~230
The FCC also determined that the exceptions in Section 253(b) and Section 253(c) do not The FCC also determined that the exceptions in Section 253(b) and Section 253(c) do not
ordinarily apply to express and de facto moratoria. As mentioned, Section 253(b) reserves “the ordinarily apply to express and de facto moratoria. As mentioned, Section 253(b) reserves “the
ability of a State” to impose requirements on a “competitively neutral basis” that are necessary to ability of a State” to impose requirements on a “competitively neutral basis” that are necessary to
“preserve and advance universal service, protect the public safety and welfare, ensure the “preserve and advance universal service, protect the public safety and welfare, ensure the
continued quality of telecommunications services, and safeguard the rights of consumers.”continued quality of telecommunications services, and safeguard the rights of consumers.”~~232~~231 The The
Commission reasoned that this exception generally would not apply because it discusses only the Commission reasoned that this exception generally would not apply because it discusses only the
authority of a state, and the absence of any indication that the exception applies to local authority of a state, and the absence of any indication that the exception applies to local
government would preclude its application to municipal moratoria.government would preclude its application to municipal moratoria.~~233~~232 Further, the FCC noted that Further, the FCC noted that
even if local moratoria fell within Section 253(b)’s jurisdictional scope, most moratoria would not even if local moratoria fell within Section 253(b)’s jurisdictional scope, most moratoria would not
meet the exception’s substantive requirements, such as being “competitively neutral” or being meet the exception’s substantive requirements, such as being “competitively neutral” or being
necessary for any of the four “public interest” purposes listed in the subsection.necessary for any of the four “public interest” purposes listed in the subsection.~~234~~233 The The
Commission acknowledged, however, that in “limited situations” a moratoria may be necessary to Commission acknowledged, however, that in “limited situations” a moratoria may be necessary to

~~225 Small Cell Order, 33 FCC Rcd. 9088 (2018).~~
~~226 Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification~~
~~Requests, 35 FCC Rcd. 5977 (2020) [hereinafter June 2020 Declaratory Ruling]; see also Acceleration of Broadband~~
~~Deployment by Improving Wireless Siting Policies, 30 FCC Rcd. 31, 43, paras. 135-241 (2014) [hereinafter 2014~~
“protect the public safety and welfare,” such as in the instance of a natural disaster that results in a widespread power or telecommunications outage.234 The Commission likewise concluded that Section 253(c) does not apply. As mentioned, Section 253(c) reserves to state and local governments “the authority . . . to manage public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a Infrastructure Order] (promulgating regulations under Section 6409(a)). Infrastructure Order] (promulgating regulations under Section 6409(a)).
~~227~~226 June 2020 Declaratory Ruling, 35 FCC Rcd. at 5978–79, para. 2. June 2020 Declaratory Ruling, 35 FCC Rcd. at 5978–79, para. 2.
~~228~~227 Moratorium Order, 33 FCC Rcd. at 7775, para. 140. Because the Moratorium Order relies on Section 253, it applies Moratorium Order, 33 FCC Rcd. at 7775, para. 140. Because the Moratorium Order relies on Section 253, it applies
to all facilities used in the provision of telecommunications service, not just wireless facilities. to all facilities used in the provision of telecommunications service, not just wireless facilities. Compare 47 U.S.C. 47 U.S.C.
§ 253(a) (applying to any legal requirement that affects “any interstate or intrastate telecommunications service) § 253(a) (applying to any legal requirement that affects “any interstate or intrastate telecommunications service) with
47 U.S.C. § 332(c)(7) (singling out “personal wireless service facilities”). 47 U.S.C. § 332(c)(7) (singling out “personal wireless service facilities”).
~~229~~228 Id. at 7777, 7780, paras. 145, 149. at 7777, 7780, paras. 145, 149.
~~230~~229 Id. at 7779, 7782, paras. 147, 151. at 7779, 7782, paras. 147, 151.
~~231~~230 Id. at 7779–80, para. 148. at 7779–80, para. 148.
~~232~~231 47 U.S.C. 47 U.S.C. § 253(b). § 253(b).
~~233~~232 Moratorium Order, 33 FCC Rcd. at 7782 Moratorium Order, 33 FCC Rcd. at 7782-–83, para. 154. 83, para. 154.
~~234~~233 Id. at 7783-84, para. 155–56. at 7783-84, para. 155–56.
234 Id. at 7784-85, para. 157. Congressional Research Service Congressional Research Service
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~~“protect the public safety and welfare,” such as in the instance of a natural disaster that results in~~
~~a widespread power or telecommunications outage.235~~
~~The Commission likewise concluded that Section 253(c) does not apply. As mentioned, Section~~
~~253(c) reserves to state and local governments “the authority . . . to manage public rights-of-way~~
~~or to require fair and reasonable compensation from telecommunications providers, on a~~
competitively neutral and nondiscriminatory basis” for use of such rights of way.competitively neutral and nondiscriminatory basis” for use of such rights of way.~~236~~ 235 Per the Per the
Moratorium Order, Section 253(c)’s applicability to a moratorium depends on whether moratoria Moratorium Order, Section 253(c)’s applicability to a moratorium depends on whether moratoria
may constitute management of public rights-of-way.may constitute management of public rights-of-way.~~237~~236 Although Section 253 does not define Although Section 253 does not define
management of public rights-of-way, past FCC precedent specifies “coordination of construction management of public rights-of-way, past FCC precedent specifies “coordination of construction
schedules, determination of insurance, bonding and indemnity requirements, establishment and schedules, determination of insurance, bonding and indemnity requirements, establishment and
enforcement of building codes, and keeping track of the various systems using the rights-of-way enforcement of building codes, and keeping track of the various systems using the rights-of-way
to prevent interference between them” as examples of public rights-of-way management.to prevent interference between them” as examples of public rights-of-way management.~~238~~237 From From
this precedent, the Commission concluded that Section 253(c) applies to “certain activities that this precedent, the Commission concluded that Section 253(c) applies to “certain activities that
involve the actual use of the right-of-way,” rather than activities that preclude access to the right-involve the actual use of the right-of-way,” rather than activities that preclude access to the right-
of-way at all.of-way at all.~~239~~238 Thus, the FCC held that Section 253(c) did not apply to moratoria. Thus, the FCC held that Section 253(c) did not apply to moratoria.
The Small Cell Order
In comparison to the relatively narrow issue addressed in the Moratorium Order, the Small Cell In comparison to the relatively narrow issue addressed in the Moratorium Order, the Small Cell
Order deals with a wide range of topics relating to state and local government authority to slow Order deals with a wide range of topics relating to state and local government authority to slow
the deployment of small wireless facilities. Most notably, the Small Cell Order addresses (1) the deployment of small wireless facilities. Most notably, the Small Cell Order addresses (1)
when state or local actions “prohibit or effectively prohibit” the provision of wireless service, and when state or local actions “prohibit or effectively prohibit” the provision of wireless service, and
(2) the timeframes within which state and local governments must act on small cell applications. (2) the timeframes within which state and local governments must act on small cell applications.
With respect to the first issue, and in contrast to the Moratorium Order, the FCC based the Small With respect to the first issue, and in contrast to the Moratorium Order, the FCC based the Small
Cell Order on Sections 253 Cell Order on Sections 253 and 332—both of which include the same “prohibit or effectively 332—both of which include the same “prohibit or effectively
prohibit” language. The Small Cell Order applied the “prohibit or effectively prohibits” language prohibit” language. The Small Cell Order applied the “prohibit or effectively prohibits” language
to reach three rulingsto reach three rulings:.
  ~~the~~The appropriate standard for determining whether state or local conduct appropriate standard for determining whether state or local conduct
“prohibit[s] or effectively prohibit[s]” the provision of service under Sections “prohibit[s] or effectively prohibit[s]” the provision of service under Sections
253 or 332 is whether the conduct “materially limits or inhibits the ability of any 253 or 332 is whether the conduct “materially limits or inhibits the ability of any
competitor or potential competitor to compete in a fair and balanced legal and competitor or potential competitor to compete in a fair and balanced legal and
regulatory environmentregulatory environment~~”;240~~.”239
  ~~state~~State and local fees associated with the deployment of wireless infrastructure and local fees associated with the deployment of wireless infrastructure ~~only~~
only comply with this “materially limits or inhibits” standard if they are non-comply with this “materially limits or inhibits” standard if they are non-
discriminatory and reasonably approximate the state or locality’s reasonable discriminatory and reasonably approximate the state or locality’s reasonable
costscosts~~;241 and~~

~~235 Id. at 7784-85, para. 157.~~
~~236 47 U.S.C. § 253(c).~~
~~237 Moratorium Order, 33 FCC Rcd. at 7786, para. 159.~~
~~238~~.240  Aesthetic requirements only comply with the “materially limits or inhibits” standard if they are reasonable, non-discriminatory, “objective and published in advance.”241 With respect to the appropriate standard, the FCC relied on FCC precedent that first articulated the “materially inhibit” standard.242 The Commission further adopted the interpretations of the 235 47 U.S.C. § 253(c). 236 Moratorium Order, 33 FCC Rcd. at 7786, para. 159. 237 Id. at para. 160 (quoting TCI Cablevision of Oakland Cty., 12 FCC Rcd. 21396, 21441, para. 103 (1997)). at para. 160 (quoting TCI Cablevision of Oakland Cty., 12 FCC Rcd. 21396, 21441, para. 103 (1997)).
~~239~~238 Id. at 7786–87, para. 160. at 7786–87, para. 160.
~~240~~239 Small Cell Order, 33 FCC Rcd. 9088, 9102, para. 35 (2018) (quoting California Payphone Ass’n, Petition for Small Cell Order, 33 FCC Rcd. 9088, 9102, para. 35 (2018) (quoting California Payphone Ass’n, Petition for
Preemption of Ordinance No. 576 NS of the City of Huntington Park, Cal., 12 FCC Rcd. 14191, 14206, para. 31 (1997) Preemption of Ordinance No. 576 NS of the City of Huntington Park, Cal., 12 FCC Rcd. 14191, 14206, para. 31 (1997)
[hereinafter [hereinafter California Payphone]). ]).
~~241~~240 Id. at 9112-13, para. 50. 241 Id. at 9132, para. 86. 242 Id. at 9102, para. 35 (citing California Payphone, 12 FCC Rcd. at 14206, para. 31). Congressional Research Service 26 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act Id. at 9112-13, para. 50.
~~Congressional Research Service~~
26

~~Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act~~

~~ aesthetic requirements only comply with the “materially limits or inhibits”~~
~~standard if they are reasonable, non-discriminatory, and “objective and published~~
~~in advance.”242~~
~~With respect to the appropriate standard, the FCC relied on FCC precedent that first articulated~~
~~the “materially inhibit” standard.243 The Commission further adopted the interpretations of the~~
First, Second, and Tenth Circuits, which held that a legal requirement can meet the “materially First, Second, and Tenth Circuits, which held that a legal requirement can meet the “materially
inhibit” standard even if it does not present an “insurmountable barrier” to the entry or provision inhibit” standard even if it does not present an “insurmountable barrier” to the entry or provision
of wireless services.of wireless services.~~244~~243 The FCC clarified that wireless service is “materially inhibited” not only The FCC clarified that wireless service is “materially inhibited” not only
when legal requirements materially inhibit the introduction of wireless service, but also when when legal requirements materially inhibit the introduction of wireless service, but also when
legal requirements materially inhibit improvement of existing services, such as by densifying an legal requirements materially inhibit improvement of existing services, such as by densifying an
existing network.existing network.~~245~~244
Regarding fees, the Commission concluded that fees “materially inhibit” the provision of wireless Regarding fees, the Commission concluded that fees “materially inhibit” the provision of wireless
service unless they reasonably approximate the state or local government’s costs, take into service unless they reasonably approximate the state or local government’s costs, take into
account only “objectively reasonable costs,” and are “no higher than the fees charged to similarly-account only “objectively reasonable costs,” and are “no higher than the fees charged to similarly-
situated competitors in similar situations.”situated competitors in similar situations.”~~246~~245 The FCC relied in part on the text of Section 253(c), The FCC relied in part on the text of Section 253(c),
which permits state and local governments to collect “fair and reasonable compensation from which permits state and local governments to collect “fair and reasonable compensation from
telecommunications providers, on a competitively neutral basis, for use of public rights-of-way telecommunications providers, on a competitively neutral basis, for use of public rights-of-way
on a nondiscriminatory basis.”on a nondiscriminatory basis.”~~247~~246 The FCC did not decide whether Section 253(a) preempts all The FCC did not decide whether Section 253(a) preempts all
fees not expressly reserved by Section 253(c), but concluded that in the context of small wireless fees not expressly reserved by Section 253(c), but concluded that in the context of small wireless
facilities, otherwise “small” fees may materially inhibit facility deployment when considered in facilities, otherwise “small” fees may materially inhibit facility deployment when considered in
the aggregate, given the expected volume of small wireless facilities.the aggregate, given the expected volume of small wireless facilities.~~248~~247 The Commission also The Commission also
identified a “safe harbor” of presumptively valid fees, including a $500 “upfront” application fee identified a “safe harbor” of presumptively valid fees, including a $500 “upfront” application fee
for up to five small wireless facilities or a $1,000 non-recurring fee for a new utility pole, and for up to five small wireless facilities or a $1,000 non-recurring fee for a new utility pole, and
$270 per small wireless facility per year for all recurring fees.$270 per small wireless facility per year for all recurring fees.~~249~~248
Addressing aesthetic requirements, the FCC noted that such requirements impose additional cost Addressing aesthetic requirements, the FCC noted that such requirements impose additional cost
on wireless providers and therefore may materially inhibit the provision of wireless service in on wireless providers and therefore may materially inhibit the provision of wireless service in
violation of Sections 253 and 332.violation of Sections 253 and 332.~~250~~249 The FCC concluded that the harms aesthetic requirements The FCC concluded that the harms aesthetic requirements
are meant to address are analogous to the “costs” borne by state and local governments and are meant to address are analogous to the “costs” borne by state and local governments and
therefore aesthetic requirements that are reasonably directed at resolving these harms would be therefore aesthetic requirements that are reasonably directed at resolving these harms would be
permissible.permissible.~~251~~250 To demonstrate this, the aesthetic requirements must not burden small wireless To demonstrate this, the aesthetic requirements must not burden small wireless
facilities more than similar infrastructure deployments, and they must “incorporate clearly-facilities more than similar infrastructure deployments, and they must “incorporate clearly-
defined and ascertainable standards, applied in a principled manner.”defined and ascertainable standards, applied in a principled manner.”~~252~~

~~242 Id. at 9132, para. 86.~~
~~243 Id. at 9102, para. 35 (citing California Payphone, 12 FCC Rcd. at 14206, para. 31).~~
~~244 Id.; see, e.g.,~~ ~~TCG N.Y., Inc. v. City of White Plains, 305 F.3d~~ 251 Lastly, in addition to clarifying when state or local actions “prohibit or effectively prohibit” wireless service under Sections 253 and 332, the Small Cell Order separately set forth “shot clocks” governing review of applications for wireless facilities. The Commission set a time limit of 60 days for attachment of a small wireless facility to an existing structure and 90 days for a new structure.252 For authority, the FCC relied on Section 332(c)(7)’s requirement that localities “act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable time,” as well as on that section’s “prohibit or effectively prohibit” 243 Id.; see, e.g., TCG N.Y., Inc. v. City of White Plains, 305 F.3d 67, 76 (2d Cir. 2002); P.R. Telephone Co. v. 67, 76 (2d Cir. 2002); P.R. Telephone Co. v.
Municipality of Guayanilla, 450 F.3d 9, 18 (1st Cir. 2006); RT Commc’ns v. FCC, 201 F.3d 1264, 1268 (10th Cir. Municipality of Guayanilla, 450 F.3d 9, 18 (1st Cir. 2006); RT Commc’ns v. FCC, 201 F.3d 1264, 1268 (10th Cir.
2000). 2000).
~~245~~244 Small Cell Order, 33 FCC Rcd. at 9104, para. 37. Small Cell Order, 33 FCC Rcd. at 9104, para. 37.
~~246~~245 Id. at 9112 at 9112-–13, para. 50. 13, para. 50.
~~247~~246 Id. at 9113–14, para. 52 (citing 47 U.S.C. § 253(c)). at 9113–14, para. 52 (citing 47 U.S.C. § 253(c)).
~~248~~247 Id. at 9114, para. 53. at 9114, para. 53.
~~249~~248 Id. at 9129, para. 79. at 9129, para. 79.
~~250~~249 Id. at 9132, para. 87. at 9132, para. 87.
~~251~~250 Id.
~~252~~251 Id. at 9132, paras. 87–88. at 9132, paras. 87–88.
252 Id. at 9092, para. 13. Congressional Research Service Congressional Research Service
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Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act

~~Lastly, in addition to clarifying when state or local actions “prohibit or effectively prohibit”~~
~~wireless service under Sections 253 and 332, the Small Cell Order separately set forth “shot~~
~~clocks” governing review of applications for wireless facilities. The Commission set a time limit~~
~~of 60 days for attachment of a small wireless facility to an existing structure and 90 days for a~~
~~new structure.253 For authority, the FCC relied on Section 332(c)(7)’s requirement that localities~~
~~“act on any request for authorization to place, construct, or modify personal wireless service~~
~~facilities within a reasonable time,” as well as on that section’s “prohibit or effectively prohibit”~~
~~language.254~~language.253 The Small Cell Order explains that in situations where a jurisdiction misses the shot The Small Cell Order explains that in situations where a jurisdiction misses the shot
clock deadline, the applicant should, in most cases, be able to obtain expedited relief in court clock deadline, the applicant should, in most cases, be able to obtain expedited relief in court
under Section 332(c)(7), which directs courts to decide suits brought by any adversely affected under Section 332(c)(7), which directs courts to decide suits brought by any adversely affected
person on an “expedited basis.”person on an “expedited basis.”~~255~~254 According to the Order, in such cases, applicants should have a According to the Order, in such cases, applicants should have a
relatively low hurdle to clear in establishing a right to expedited judicial relief,” since missing the relatively low hurdle to clear in establishing a right to expedited judicial relief,” since missing the
shot clock would amount to a presumptive violation of Section 332(c)(7).shot clock would amount to a presumptive violation of Section 332(c)(7).~~256~~255
The June 2020 Declaratory Ruling
In 2014, the Commission issued rules implementing Section 6409(a) (“2014 Infrastructure In 2014, the Commission issued rules implementing Section 6409(a) (“2014 Infrastructure
Order”), including specifying what qualifies as “substantially chang[ing] the physical Order”), including specifying what qualifies as “substantially chang[ing] the physical
dimensions” of a wireless facility and setting a 60-day shot clock for facility modifications.dimensions” of a wireless facility and setting a 60-day shot clock for facility modifications.~~257~~256
After a coalition of municipalities challenged this order in court, the Fourth Circuit affirmed the After a coalition of municipalities challenged this order in court, the Fourth Circuit affirmed the
2014 Infrastructure Order, holding that the Commission had statutory authority to make its rules 2014 Infrastructure Order, holding that the Commission had statutory authority to make its rules
and had not defined any terms in Section 6409(a) unreasonably.and had not defined any terms in Section 6409(a) unreasonably.~~258~~257
The June 2020 Declaratory Ruling clarifies the rules implemented by the Commission in the 2014 The June 2020 Declaratory Ruling clarifies the rules implemented by the Commission in the 2014
Infrastructure Order. Recognizing that localities had inconsistently applied the 2014 Infrastructure Infrastructure Order. Recognizing that localities had inconsistently applied the 2014 Infrastructure
Order’s 60-day shot clock, the FCC clarified that the shot clock begins when (1) the party Order’s 60-day shot clock, the FCC clarified that the shot clock begins when (1) the party
applying for the modification “takes the first procedural step” required by the local jurisdiction’s applying for the modification “takes the first procedural step” required by the local jurisdiction’s
review process, and (2) the applicant demonstrates in writing that the proposed modification is review process, and (2) the applicant demonstrates in writing that the proposed modification is
covered by Section 6409(a).covered by Section 6409(a).~~259~~258 In addition to addressing the shot clock, the June 2020 Declaratory In addition to addressing the shot clock, the June 2020 Declaratory
Ruling further elaborates what qualifies as “substantially chang[ing] the physical dimensions” of Ruling further elaborates what qualifies as “substantially chang[ing] the physical dimensions” of
a wireless facility, addressing several definitional ambiguities found in the regulations issued a wireless facility, addressing several definitional ambiguities found in the regulations issued
under the 2014 Infrastructure Order.under the 2014 Infrastructure Order.~~260~~259
Legal Challenges
A number of parties, including state and local governments, utilities, telecommunications A number of parties, including state and local governments, utilities, telecommunications
providers, and interest groups have petitioned federal courts for review of the FCC’s orders. providers, and interest groups have petitioned federal courts for review of the FCC’s orders.
While the Ninth Circuit recently upheld the bulk of the Small Cell and Moratorium Orders—While the Ninth Circuit recently upheld the bulk of the Small Cell and Moratorium Orders—

~~253 Id. at 9092, para. 13.~~
~~254 Id. at 9148–49, paras. 117–118.~~
~~255 Id. at 9149, para. 120.~~
256 Id.
~~257 2014 Infrastructure Order, 30 FCC Rcd. 31, 43, paras. 135–241 (2014).~~
~~258 Montgomery Cty., Md. v. FCC, 811 F.3d 121 (4th Cir. 2015).~~
~~259 June 2020 Declaratory Ruling, 35 FCC Rcd. at 5986, para. 16.~~
~~260~~vacating only the Small Cell Order’s aesthetic requirements—the litigation surrounding the June 2020 Declaratory Ruling is ongoing.260 In the challenges to the Small Cell and Moratorium Orders, state and local governments challenged the FCC’s action under a number of theories, including a number of evergreen administrative law doctrines such as the “arbitrary and capricious” standard and Chevron deference framework.261 The local governments argued that the FCC’s orders go beyond what 253 Id. at 9148–49, paras. 117–118. 254 Id. at 9149, para. 120. 255 Id. 256 2014 Infrastructure Order, 30 FCC Rcd. 31, 43, paras. 135–241 (2014). 257 Montgomery Cty. v. FCC, 811 F.3d 121 (4th Cir. 2015). 258 June 2020 Declaratory Ruling, 35 FCC Rcd. at 5986, para. 16. 259 Id. at 5989–99, paras. 24–44; see 47 CFR 1.6100(b)(7) (defining “substantial change” for purposes of Section 6409(a)). 260 City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020) (upholding all of the FCC’s requirements except for its aesthetic requirements); Order, League of Cal. Cities v. FCC, No. 20-71765 (9th Cir. July 28, 2021), ECF No. 63 (granting FCC’s motion to stay the proceedings). 261 See Brief for Petitioners, City of Portland v. United States, No. 18-72689 (9th Cir. June 10, 2019), ECF No. 62. Congressional Research Service 28 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act Sections 253 and 332 permit and do not articulate administrable standards.262 Id. at 5989–99, paras. 24–44; see 47 CFR 1.6100(b)(7) (defining “substantial change” for purposes of Section
~~6409(a)).~~
~~Congressional Research Service~~
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~~Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act~~

~~vacating only the Small Cell Order’s aesthetic requirements—the litigation surrounding the June~~
~~2020 Declaratory Ruling is ongoing.261~~
~~In the challenges to the Small Cell and Moratorium Orders, state and local governments~~
~~challenged the FCC’s action under a number of theories, including a number of evergreen~~
administrative law doctrines such as the “arbitrary and capricious” standard and Chevron
~~deference framework.262 The local governments argued that the FCC’s orders go beyond what~~
~~Sections 253 and 332 permit and do not articulate administrable standards.263~~ They further argued They further argued
that the orders violated the Constitution by, among other things, compelling them to enforce or that the orders violated the Constitution by, among other things, compelling them to enforce or
administer a federal regulatory program in violation of the Tenth Amendment.administer a federal regulatory program in violation of the Tenth Amendment.~~264~~263
However, in August 2020, in However, in August 2020, in City of Portland v. United States, the Ninth Circuit largely upheld , the Ninth Circuit largely upheld
both orders.both orders.~~265~~264 As a threshold matter, the Court upheld the FCC’s application of its “material As a threshold matter, the Court upheld the FCC’s application of its “material
inhibition” standard to determine when municipal regulations “prohibit or effectively prohibit” inhibition” standard to determine when municipal regulations “prohibit or effectively prohibit”
the provision of services under Sections 253 or 332.the provision of services under Sections 253 or 332.~~266~~265 The court reasoned that this standard was The court reasoned that this standard was
consistent with Ninth Circuit precedent and that any differences in the way the FCC now applied consistent with Ninth Circuit precedent and that any differences in the way the FCC now applied
this standard in the 5G context could be “reasonably explained” by the differences in this standard in the 5G context could be “reasonably explained” by the differences in
technology.technology.~~267~~266 Moving on to the orders’ specific rulings, the court held that the Small Cell Order’s Moving on to the orders’ specific rulings, the court held that the Small Cell Order’s
fee limitations and shot clocks, and the Moratorium Order’s definitions of express and de facto fee limitations and shot clocks, and the Moratorium Order’s definitions of express and de facto
moratoria, were consistent with the statutory provisions and were not arbitrary or capricious.moratoria, were consistent with the statutory provisions and were not arbitrary or capricious.~~268~~267
The court vacated and remanded, however, the Small Cell Order’s aesthetics requirements.The court vacated and remanded, however, the Small Cell Order’s aesthetics requirements.~~269~~268 It It
reasoned that Section 332 “expressly permits some difference in treatment of different providers, reasoned that Section 332 “expressly permits some difference in treatment of different providers,
so long as the treatment is reasonable.”so long as the treatment is reasonable.”~~270~~269 Consequently, the FCC’s blanket prohibition that Consequently, the FCC’s blanket prohibition that
municipalities may not impose aesthetic requirements on small wireless facilities more municipalities may not impose aesthetic requirements on small wireless facilities more
burdensome than similar infrastructure deployments was, according to the court, inconsistent with burdensome than similar infrastructure deployments was, according to the court, inconsistent with
Section 332.Section 332.~~271~~270 The court further held that the FCC acted arbitrarily and capriciously by The court further held that the FCC acted arbitrarily and capriciously by
prohibiting aesthetic requirements.prohibiting aesthetic requirements.~~272~~271 The court explained that aesthetic regulation of small cells The court explained that aesthetic regulation of small cells
“should be directed to preventing the intangible public harm of unsightly or out-of-character “should be directed to preventing the intangible public harm of unsightly or out-of-character
deployments,” and that such harms are “at least to some extent, necessarily subjective.”deployments,” and that such harms are “at least to some extent, necessarily subjective.”~~273~~272
Separate from the statutory and administrative law issues, the court rejected the constitutional Separate from the statutory and administrative law issues, the court rejected the constitutional
arguments advanced by the municipalities.arguments advanced by the municipalities.~~274~~273 Most notably, the court rejected the argument that the orders violated the Tenth Amendment by requiring the municipalities to “enforce federal law.”274 The court explained that, rather than “commandeer[ing] State and local officials in violation of the Tenth Amendment,” the orders simply “confer[red] on private entities a federal right to engage in certain conduct subject to only certain (federal) constraints.”275 In addition to the Small Cell and Moratorium Order challenges, a consortium of municipalities in California and Oregon have challenged the June 2020 Declaratory Ruling, alleging that the FCC violated the Administrative Procedure Act, the Constitution, and the Communications Act in issuing it.276 These proceedings have been stayed until November 2021, with no briefing schedule 262 Id. at 29–34. 263 Id. at 106–16. 264 City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020). 265 Id. at 1035. 266 Id. 267 Id. at 1037–39, 1043–45, 1047–48. 268 Id. at 1040–43. 269 Id. at 1040. 270 Id. at 1040–41. 271 Id. at 1042. 272 Id. (internal quotations and citations omitted). 273 Id. at 1048–49. 274 Id. at 1049. 275 Id. (internal quotations and citations omitted). 276 Pet. for Rev., League of Cal. Cities v. FCC, No. 20-71765 (9th Cir. June 22, 2020). Congressional Research Service 29 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act currently set.277 ~~Most notably, the court rejected the argument that~~

~~261 City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020) (upholding all of the FCC’s requirements except for~~
~~its aesthetic requirements); Order, League of Cal. Cities v. FCC, No. 20-71765 (9th Cir. Mar. 19, 2021), ECF No. 59~~
~~(granting FCC’s motion to stay the proceedings). Additionally, several municipalities have asked the Supreme Court to~~
~~review the Ninth Circuit’s decision upholding the Small Cell and Moratorium Orders. Pet. for Writ of Certiorari, City~~
~~of Portland v. FCC, No. 20-1354 (U.S. Mar. 22, 2021).~~
~~262 See Brief for Petitioners, City of Portland v. United States, No. 18-72689 (9th Cir. June 10, 2019), ECF No. 62.~~
~~263 Id. at 29–34.~~
~~264 Id. at 106–16.~~
~~265 City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020).~~
~~266 Id. at 1035.~~
267 Id.
~~268 Id. at 1037–39, 1043–45, 1047–48.~~
~~269 Id. at 1040–1043.~~
~~270 Id. at 1040.~~
~~271 Id. at 1040–41.~~
~~272 Id. at 1042.~~
~~273 Id. (internal quotations and citations omitted).~~
~~274 Id. at 1048–49.~~
~~Congressional Research Service~~
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~~Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act~~

~~the orders violated the Tenth Amendment by requiring the municipalities to “enforce federal~~
~~law.”275 The court explained that, rather than “commandeer[ing] State and local officials in~~
~~violation of the Tenth Amendment,” the orders simply “confer[red] on private entities a federal~~
~~right to engage in certain conduct subject to only certain (federal) constraints.”276~~
~~Several cities have petitioned the Supreme Court to review the Ninth Circuit’s decision, though~~
~~the Court has not yet acted on this petition.277 In addition to the Small Cell and Moratorium Order~~
~~challenges, a consortium of municipalities in California and Oregon have challenged the June~~
~~2020 Declaratory Ruling, alleging that the FCC violated the Administrative Procedure Act, the~~
~~Constitution, and the Communications Act in issuing it.278 These proceedings have been stayed~~
~~until July 2021, with no briefing schedule currently set.279~~ However, one possible point of However, one possible point of
contention may be whether the Declaratory Ruling impermissibly promulgated new “rules,” contention may be whether the Declaratory Ruling impermissibly promulgated new “rules,”
rather than merely clarifying existing rules.rather than merely clarifying existing rules.~~280~~278
Legislative Activity
Two bills from the 116th Congress addressed state and local authority over small cell siting. One Two bills from the 116th Congress addressed state and local authority over small cell siting. One
of these bills, the STREAMLINE Small Cell Deployment Act (STREAMLINE Act),of these bills, the STREAMLINE Small Cell Deployment Act (STREAMLINE Act),~~281~~279 would would
have largely adopted the FCC’s conclusions in the Small Cell Order. Notable differences between have largely adopted the FCC’s conclusions in the Small Cell Order. Notable differences between
the STREAMLINE Act and the Small Cell Order include slightly different “shot clock” times and the STREAMLINE Act and the Small Cell Order include slightly different “shot clock” times and
the presence in the STREAMLINE Act of a “deemed granted” remedy (i.e., allowing a wireless the presence in the STREAMLINE Act of a “deemed granted” remedy (i.e., allowing a wireless
provider’s application to be deemed granted after a sufficient period of inaction). Another bill, the provider’s application to be deemed granted after a sufficient period of inaction). Another bill, the
Accelerating Broadband Development by Empowering Local Communities Act,Accelerating Broadband Development by Empowering Local Communities Act,~~282~~280 would have would have
invalidated the Small Cell Order and Moratorium Order. invalidated the Small Cell Order and Moratorium Order.
Community Broadband
A number of local governments throughout the United States offer consumers an option to receive A number of local governments throughout the United States offer consumers an option to receive
broadband service from a public entity (known as “community broadband” or “municipal broadband service from a public entity (known as “community broadband” or “municipal
broadband”). A number of states currently place restrictions on local government ability to broadband”). A number of states currently place restrictions on local government ability to
provide community broadband services. The FCC has attempted to preempt state restrictions on provide community broadband services. The FCC has attempted to preempt state restrictions on
community broadband when such restrictions are inconsistent with FCC regulations; however, a community broadband when such restrictions are inconsistent with FCC regulations; however, a
recent Sixth Circuit decision held that the FCC could not preempt state regulation of community recent Sixth Circuit decision held that the FCC could not preempt state regulation of community
broadband without an express statutory grant of preemption authority from Congress. Even if broadband without an express statutory grant of preemption authority from Congress. Even if
Congress expressly grants the FCC authority to preempt state restrictions on community Congress expressly grants the FCC authority to preempt state restrictions on community
broadband, such a delegation of authority is likely to face constitutional challenges. The FCC’s broadband, such a delegation of authority is likely to face constitutional challenges. The FCC’s
approach to community broadband, particularly as it implicates the authority of states, involves approach to community broadband, particularly as it implicates the authority of states, involves

~~275 Id. at 1049.~~
~~276 Id. (internal quotations and citations omitted).~~
~~277 Pet. for Writ of Certiorari, City of Portland v. FCC, No. 20-1354 (U.S. Mar. 22, 2021).~~
~~278 Pet. for Rev., League of Cal. Cities v. FCC, No. 20-71765 (9th Cir. June 22, 2020).~~
~~279 Order, League of Cal. Cities v. FCC, No. 20-71765 (9th Cir. Mar. 19, 2021), ECF No. 59.~~
~~280~~issues under Gregory v. Ashcroft’s “plain statement” rule and, in some cases, the Tenth Amendment.281 Background Municipal broadband or community broadband refers generally to any arrangement in which a local government participates in the provision of high-speed internet service to members of its community.282 Government participation can range from public-private partnerships to broadband cooperatives or publicly owned networks. The Institute for Local Self-Reliance identifies more than 560 communities in the United States served by some form of municipal broadband.283 277 Order, League of Cal. Cities v. FCC, No. 20-71765 (9th Cir. July 28, 2021), ECF No. 63. 278 Id.; ; see also Nat’l League of Cities, Comment on Implementation of State and Local Governments’ Obligation to Nat’l League of Cities, Comment on Implementation of State and Local Governments’ Obligation to
Approve Certain Wireless Facility Modification Requests, 8-9 (Oct. 29, 2019) (asserting that changing the Approve Certain Wireless Facility Modification Requests, 8-9 (Oct. 29, 2019) (asserting that changing the
Commission’s Section 6409(a) rules through a declaratory ruling “would not comport with the APA’s requirements”). Commission’s Section 6409(a) rules through a declaratory ruling “would not comport with the APA’s requirements”).
See generally 5 U.S.C. § 553 (setting forth procedures for rulemaking). 5 U.S.C. § 553 (setting forth procedures for rulemaking).
~~281~~279 S. 1699, 116th Cong. (2019). S. 1699, 116th Cong. (2019).
~~282~~280 H.R. 530, 116th Cong. (2019). 281 See Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (articulating the “plain statement” rule); U.S. CONST. amend. X (reserving to the states “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States”). 282 For more background on community broadband generally, see CRS Report R44080, Municipal Broadband: Background and Policy Debate, by Lennard G. Kruger and Angele A. Gilroy. 283 Community Network Map, COMMUNITY BROADBAND NETWORKS (last visited Sept. 16, 2021), Congressional Research Service 30 link to page 26 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act ~~H.R. 530, 116th Cong. (2019).~~
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~~Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act~~

~~issues under Gregory v. Ashcroft’s “plain statement” rule and, in some cases, the Tenth~~
~~Amendment.283~~
~~Background~~
~~Municipal broadband or community broadband refers generally to any arrangement in which a~~
~~local government participates in the provision of high-speed internet service to members of its~~
~~community.284 Government participation can range from public-private partnerships to broadband~~
~~cooperatives or publicly owned networks. The Institute for Local Self-Reliance identifies more~~
~~than 560 communities in the United States served by some form of municipal broadband.285~~
The FCC has historically been supportive of community broadband. In its 2010 National The FCC has historically been supportive of community broadband. In its 2010 National
Broadband Plan, the Commission noted that restricting deployment of community broadband “in Broadband Plan, the Commission noted that restricting deployment of community broadband “in
some cases restricts the country’s ability to close the broadband availability gap.”some cases restricts the country’s ability to close the broadband availability gap.”~~286~~284 As early as As early as
2000, the Commission favorably acknowledged direct public investment in broadband 2000, the Commission favorably acknowledged direct public investment in broadband
infrastructure by municipalities.infrastructure by municipalities.~~287~~285
FCC Action and Statutory Authority
A number of states currently restrict municipal participation in the provision of broadband A number of states currently restrict municipal participation in the provision of broadband
service. Some states, such as Nebraska, directly prohibit local governments from participating in service. Some states, such as Nebraska, directly prohibit local governments from participating in
the provision of broadband service.the provision of broadband service.~~288~~286 Other states require municipalities to obtain a certain Other states require municipalities to obtain a certain
amount of local support in a referendum before offering broadband service.amount of local support in a referendum before offering broadband service.~~289~~287 Some states, such Some states, such
as Utah, require municipalities to undergo a series of steps before they may provide broadband as Utah, require municipalities to undergo a series of steps before they may provide broadband
service.service.~~290~~288
Nixon v. Missouri Municipal League
In several instances, municipalities have petitioned the FCC to preempt state laws that restrict In several instances, municipalities have petitioned the FCC to preempt state laws that restrict
municipal participation in broadband or telecommunications. One of the earliest of these petitions municipal participation in broadband or telecommunications. One of the earliest of these petitions
involved a Missouri law, passed in 1997, that prohibited municipalities from providing involved a Missouri law, passed in 1997, that prohibited municipalities from providing
“telecommunications service.”“telecommunications service.”~~291~~289 Municipalities petitioned the FCC to preempt this law under Municipalities petitioned the FCC to preempt this law under
Section 253, which, as mentioned, enables the FCC to preempt state or local requirements that Section 253, which, as mentioned, enables the FCC to preempt state or local requirements that
“may prohibit or have the effect or prohibiting the ability of any entity to provide” a “may prohibit or have the effect or prohibiting the ability of any entity to provide” a

~~283 See Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (articulating the “plain statement” rule); U.S. CONST. amend. X~~
~~(reserving to the states “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the~~
~~States”).~~
~~284 For more background on community broadband generally, see CRS Report R44080,~~ ~~Municipal Broadband:~~
~~Background and Policy Debate, by Lennard G. Kruger and Angele A. Gilroy.~~
~~285 Community Network Map, COMMUNITY BROADBAND NETWORKS (last visited Mar. 19, 2020),~~
~~https://muninetworks.org/communitymap.~~
~~286~~telecommunications service.290 The FCC, however, declined to preempt the Missouri law based on its understanding that Section 253’s reference to “any entity” does not extend to political subdivisions of a state.291 The FCC relied on the “clear statement” rule of Gregory v. Ashcroft in reaching this conclusion, determining that an intent to apply Section 253 to political subdivisions was not sufficiently clear from the statute’s text to support abrogating the state’s power.292 The case reached the Supreme Court, which affirmed the FCC’s decision in the case Nixon v. Missouri Municipal League.293 Writing for the majority, Justice Souter invoked the Court’s “working assumption that federal legislation threatening to trench on the States’ arrangements for conducting their own governments should be treated with great skepticism” in the absence of the https://muninetworks.org/communitymap. 284 FED. COMMC’NS COMM’N, CONNECTING AMERICA: THE NATIONAL BROADBAND PLAN 169 (2010), FED. COMMC’NS COMM’N, CONNECTING AMERICA: THE NATIONAL BROADBAND PLAN 169 (2010),
https://transition.fcc.gov/national-broadband-plan/national-broadband-plan.pdf. https://transition.fcc.gov/national-broadband-plan/national-broadband-plan.pdf.
~~287~~285 FED. COMMCN’S COMM’N, DEPLOYMENT OF ADVANCED TELECOMMUNICATIONS CAPABILITY: SECOND REPORT 61, 63- FED. COMMCN’S COMM’N, DEPLOYMENT OF ADVANCED TELECOMMUNICATIONS CAPABILITY: SECOND REPORT 61, 63-
64, 72-73, paras. 140, 150, 181-82 (2000), https://transition.fcc.gov/Bureaus/Common_Carrier/Orders/2000/64, 72-73, paras. 140, 150, 181-82 (2000), https://transition.fcc.gov/Bureaus/Common_Carrier/Orders/2000/
fcc00290.pdf. fcc00290.pdf.
~~288~~286 NEB. REV. STAT. § 86-594 (2020). NEB. REV. STAT. § 86-594 (2020).
~~289~~287 E.g., MINN. STAT. § 237.19 (2020). , MINN. STAT. § 237.19 (2020).
~~290~~288 UTAH CODE ANN. § 10-18-202 (2020). UTAH CODE ANN. § 10-18-202 (2020).
~~291~~289 MO. ANN. STAT. § 392.410 (2016). The law explicitly carves out “internet-type services” from its application. MO. ANN. STAT. § 392.410 (2016). The law explicitly carves out “internet-type services” from its application. Id.
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~~telecommunications service.292 The FCC, however, declined to preempt the Missouri law based~~
~~on its understanding that Section 253’s reference to “any entity” does not extend to political~~
~~subdivisions of a state.293 The FCC relied on the “clear statement” rule of Gregory v. Ashcroft in~~
~~reaching this conclusion, determining that an intent to apply Section 253 to political subdivisions~~
~~was not sufficiently clear from the statute’s text to support abrogating the state’s power.294 The~~
~~case reached the Supreme Court, which affirmed the FCC’s decision in the case~~ ~~Nixon v. Missouri~~
~~Municipal League.295 Writing for the majority, Justice Souter invoked the Court’s “working~~
~~assumption that federal legislation threatening to trench on the States’ arrangements for~~
~~conducting their own governments should be treated with great skepticism” in the absence of a~~
plain statement required under Gregory~~.296~~ 290 See 47 U.S.C. § 253; “FCC Statutory Authority and Procedure,” supra. 291 Mo. Mun. League, 16 FCC Rcd. 1157, 1162, para. 9 (2001). 292 Id. at 1169, para. 19. 293 541 U.S. 125 (2004). Congressional Research Service 31 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act plain statement required under Gregory.294 Justice Souter observed that section 253’s reference to Justice Souter observed that section 253’s reference to
“any entity” is susceptible to multiple readings and therefore insufficiently clear.“any entity” is susceptible to multiple readings and therefore insufficiently clear.~~297~~295
Tennessee v. FCC
The cities of Wilson, North Carolina and Chattanooga, Tennessee later brought petitions to The cities of Wilson, North Carolina and Chattanooga, Tennessee later brought petitions to
preempt state laws restricting the development of municipal broadband in their respective states. preempt state laws restricting the development of municipal broadband in their respective states.
Tennessee permits any municipality operating an electric plant to offer cable, video, and internet Tennessee permits any municipality operating an electric plant to offer cable, video, and internet
services only “within its service area.”services only “within its service area.”~~298~~296 North Carolina similarly restricts city-owned North Carolina similarly restricts city-owned
communications providers to providing service “within the corporate limits of the city providing communications providers to providing service “within the corporate limits of the city providing
the communications service.”the communications service.”~~299~~297 Both Wilson and Chattanooga sought to expand coverage of their Both Wilson and Chattanooga sought to expand coverage of their
broadband networks beyond what state law would permit and asked the FCC to preempt their broadband networks beyond what state law would permit and asked the FCC to preempt their
respective state’s law to allow expansion. respective state’s law to allow expansion.
The Commission granted the cities’ petitions, relying on Section 706 of the Telecommunications The Commission granted the cities’ petitions, relying on Section 706 of the Telecommunications
Act of 1996.Act of 1996.~~300~~298 Section 706 provides, in relevant part: Section 706 provides, in relevant part:
The Commission . . . shall encourage the deployment on a reasonable and timely basis of The Commission . . . shall encourage the deployment on a reasonable and timely basis of
advanced telecommunications capability to all Americans . . . by utilizing, in a manner advanced telecommunications capability to all Americans . . . by utilizing, in a manner
consistent with the public interest, convenience, and necessity, price cap regulation, consistent with the public interest, convenience, and necessity, price cap regulation,
regulatory regulatory
forbearance, forbearance,
measures measures
that that
promote promote
competition competition
in in
the the
local local
telecommunications market, or other regulating methods that remove barriers to telecommunications market, or other regulating methods that remove barriers to
infrastructure investment.infrastructure investment.~~301~~299
Though Section 706 does not explicitly mention preemption of state law, the FCC interpreted Though Section 706 does not explicitly mention preemption of state law, the FCC interpreted
“regulating methods that remove barriers to infrastructure investment” to “undoubtedly” include “regulating methods that remove barriers to infrastructure investment” to “undoubtedly” include
preemption.preemption.~~302~~300 The Commission squared this interpretation with the Supreme Court’s decisions in The Commission squared this interpretation with the Supreme Court’s decisions in
Gregory and and Nixon by determining that the “clear statement” rule did not apply to issues of by determining that the “clear statement” rule did not apply to issues of
“federal oversight of interstate commerce,” rather than direct limitations on state government.“federal oversight of interstate commerce,” rather than direct limitations on state government.~~303~~

~~292 See 47 U.S.C. § 253; “FCC Statutory Authority and Procedure”, supra.~~
~~293 Mo. Mun. League, 16 FCC Rcd. 1157, 1162, para. 9 (2001).~~
~~294 Id. at 1169, para. 19.~~
~~295 541 U.S. 125 (2004).~~
~~296 Id. at 140.~~
297 Id.
~~298 TENN. CODE. ANN. § 7-52-601 (2020).~~
~~299 N.C. GEN. STAT. ANN. § 160A-340.1(a)(3) (2020).~~
~~300 30 FCC Rcd. 2408 (2015).~~
~~301 47 U.S.C. § 1302.~~
~~302 30 FCC Rcd. at 2411–12, 2468–69, paras. 9, 145.~~
~~303~~301 In the Commission’s view, “the question . . . is not whether the municipal systems can provide broadband at all, but rather whether the states may dictate the manner in which interstate commerce is conducted and the nature of competition that should exist for interstate communications.”302 The FCC therefore preempted the Tennessee and North Carolina laws, but emphasized that it would only preempt state laws in instances where a state chooses to permit municipalities to provide broadband, but also limits the municipalities’ exercise of that authority.303 294 Id. at 140. 295 Id. 296 TENN. CODE. ANN. § 7-52-601 (2020). 297 N.C. GEN. STAT. ANN. § 160A-340.1(a)(3) (2020). 298 30 FCC Rcd. 2408 (2015). 299 47 U.S.C. § 1302. 300 30 FCC Rcd. at 2411–12, 2468–69, paras. 9, 145. 301 Id. at 2412, 2472–74, paras. 12, 154–58; at 2412, 2472–74, paras. 12, 154–58; see United States v. Locke, 529 U.S. 89, 107–08 (2000) (“an ‘assumption’ United States v. Locke, 529 U.S. 89, 107–08 (2000) (“an ‘assumption’
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~~Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act~~

~~In the Commission’s view, “the question . . . is not whether the municipal systems can provide~~
~~broadband at all, but rather whether the states may dictate the manner in which interstate~~
~~commerce is conducted and the nature of competition that should exist for interstate~~
~~communications.”304 The FCC therefore preempted the Tennessee and North Carolina laws, but~~
~~emphasized that it would only preempt state laws in instances where a state chooses to permit~~
~~municipalities to provide broadband, but also limits the municipalities’ exercise of that~~
~~authority.305~~of nonpre-emption [sic] is not triggered when the State regulates in an area where there has been a history of significant federal presence.”). 302 30 FCC Rcd. at 2412, para. 12. 303 Id., para. 11. Congressional Research Service 32 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act
Following a petition for review from Tennessee and North Carolina, the Sixth Circuit overturned Following a petition for review from Tennessee and North Carolina, the Sixth Circuit overturned
the Commission in the Commission in Tennessee v. FCC..~~306~~304 Contrary to the Commission’s determinations, the court Contrary to the Commission’s determinations, the court
determined that the clear statement rule applied to the FCC’s exercise of preemption authority determined that the clear statement rule applied to the FCC’s exercise of preemption authority
under Section 706. The court noted that, as in under Section 706. The court noted that, as in Nixon, Tennessee and North Carolina had “made , Tennessee and North Carolina had “made
discretionary determinations for their political subdivisions” by passing the laws at issue.discretionary determinations for their political subdivisions” by passing the laws at issue.~~307~~305 The The
FCC’s distinction between preempting state authority over political subdivisions and preempting FCC’s distinction between preempting state authority over political subdivisions and preempting
regulation in a traditionally federal space was, the Sixth Circuit determined, a false one: the court regulation in a traditionally federal space was, the Sixth Circuit determined, a false one: the court
noted that the Tennessee and North Carolina laws “implicate core attributes of state sovereignty noted that the Tennessee and North Carolina laws “implicate core attributes of state sovereignty
and regulate interstate communications,” rather than one or the other.regulate interstate communications,” rather than one or the other.~~308~~306 Having determined that Having determined that
the clear statement rule applied, the court held that Section 706 does not include a clear statement the clear statement rule applied, the court held that Section 706 does not include a clear statement
authorizing preemption of Tennessee and North Carolina’s laws.authorizing preemption of Tennessee and North Carolina’s laws.~~309~~307 The court maintained, The court maintained,
however, that its holding did not address whether Section 706 provides any preemptive authority however, that its holding did not address whether Section 706 provides any preemptive authority
at all or whether Congress could, consistent with the Constitution, provide the FCC with the at all or whether Congress could, consistent with the Constitution, provide the FCC with the
power to preempt state laws regulating municipal broadband.power to preempt state laws regulating municipal broadband.~~310~~308
Constitutional Issues
The courts in The courts in Nixon and and Tennessee both relied on the “clear statement” rule to determine that both relied on the “clear statement” rule to determine that
Congress had not delegated to the FCC the power to preempt state restrictions on municipally Congress had not delegated to the FCC the power to preempt state restrictions on municipally
owned broadband or communications networks. Consequently, neither court reached the issue of owned broadband or communications networks. Consequently, neither court reached the issue of
whether such a delegation would be constitutional. whether such a delegation would be constitutional.
The United States operates as “a system of dual sovereignty between the States and the Federal The United States operates as “a system of dual sovereignty between the States and the Federal
Government.”Government.”~~311~~309 Within this system, states “retain substantial sovereign authority” over those Within this system, states “retain substantial sovereign authority” over those
aspects not delegated to the federal government by the Constitution.aspects not delegated to the federal government by the Constitution.~~312~~310 Among the reserved rights Among the reserved rights
under this state sovereign authority is the right to manage state government through the creation under this state sovereign authority is the right to manage state government through the creation
of political subdivisions.of political subdivisions.~~313~~311 Relatedly, the Supreme Court has observed that a municipal Relatedly, the Supreme Court has observed that a municipal

~~of nonpre-emption [sic] is not triggered when the State regulates in an area where there has been a history of significant~~
~~federal presence.”).~~
~~304 30 FCC Rcd. at 2412, para. 12.~~
~~305 Id., para. 11.~~
~~306 832 F.3d 597 (6th Cir. 2016).~~
~~307 Id. at 611.~~
~~308 Id. at 612.~~
~~309 Id. at 613.~~
310 Id.
~~311 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).~~
~~312 Id.; see U.S. CONST. amend. X.~~
~~313~~government “has no privileges or immunities under the Federal Constitution which it may invoke in opposition to the will of its creator.”312 Political subdivisions, in other words, are arms of a state without any sovereign authority of their own, absent a delegation of such power from a state.313 Because the Nixon and Tennessee courts determined the FCC lacked a “plain statement” of authority to preempt state restrictions on municipal broadband and telecommunications services, 304 832 F.3d 597 (6th Cir. 2016). 305 Id. at 611. 306 Id. at 612. 307 Id. at 613. 308 Id. 309 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). 310 Id.; see U.S. CONST. amend. X. 311 U.S. CONST. amend. X; U.S. CONST. amend. X; see Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 607–08 (1991) (“The principle is Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 607–08 (1991) (“The principle is
well settled that local ‘governmental units are created as convenient agencies for exercising such of the governmental well settled that local ‘governmental units are created as convenient agencies for exercising such of the governmental
powers of the State as may be entrusted to them . . . in [its] absolute discretion.’” (quoting Sailors v. Bd. of Ed. of Kent powers of the State as may be entrusted to them . . . in [its] absolute discretion.’” (quoting Sailors v. Bd. of Ed. of Kent
Cty., 387 U.S. 105, 108 (1967) (alteration in original))); City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 Cty., 387 U.S. 105, 108 (1967) (alteration in original))); City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536
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~~government “has no privileges or immunities under the Federal Constitution which it may invoke~~
~~in opposition to the will of its creator.”314 Political subdivisions, in other words, are arms of a~~
~~state without any sovereign authority of their own, absent a delegation of such power from a~~
~~state.315~~
~~Because the Nixon and Tennessee courts determined the FCC lacked a “plain statement” of~~
~~authority to preempt state restrictions on municipal broadband and telecommunications services,~~
U.S. 424, 437 (2002) (“Whether and how to [allocate municipal authority] is a question central to state self-government.”). 312 Williams v. Mayor of Baltimore, 289 U.S. 36, 40 (1933). 313 See Hunter v. Pittsburgh, 207 U.S. 161, 178–79 (1907) (“The number, nature, and duration of the powers conferred upon [municipal corporations] rests in the absolute discretion of the state.”) Congressional Research Service 33 link to page 37 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act neither court discussed whether such a grant of authority—if made plainly—would be neither court discussed whether such a grant of authority—if made plainly—would be
constitutionally permissible. Federal courts have upheld federal legislation that permits constitutionally permissible. Federal courts have upheld federal legislation that permits
municipalities to take actions contrary to state law in other contexts.municipalities to take actions contrary to state law in other contexts.~~316~~314 The The Nixon court indirectly court indirectly
suggested that a clear statement might be sufficient to support such preemption.suggested that a clear statement might be sufficient to support such preemption.~~317~~315 Because these Because these
constitutional issues remain unaddressed, any legislative action taken to preempt state restrictions constitutional issues remain unaddressed, any legislative action taken to preempt state restrictions
on community broadband may be subject to constitutional scrutiny. on community broadband may be subject to constitutional scrutiny.
Legislative Activity
As of the date of this report, As of the date of this report, ~~one bill has~~several bills have been introduced in the 117th Congress that would address been introduced in the 117th Congress that would address
community broadband.community broadband.~~318~~316 Additionally, several legislative proposals from past congresses address Additionally, several legislative proposals from past congresses address
community community ~~broadban~~dbroadb and. Table 1 summarizes these proposals. . Table 1 ~~summarizes these proposals.~~

~~U.S. 424, 437 (2002) (“Whether and how to [allocate municipal authority] is a question central to state self-~~
~~government.”).~~
~~314 Williams v. Mayor of Baltimore, 289 U.S. 36, 40 (1933).~~
~~315 See Hunter v. Pittsburgh, 207 U.S. 161, 178–79 (1907) (“The number, nature, and duration of the powers conferred~~
~~upon [municipal corporations] rests in the absolute discretion of the state.”)~~
~~316 See, e.g., Lawrence Cty. v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 257–61 (1985) (holding that a~~
~~federal statute authorizing local government to spend payments “for any governmental purpose” preempts state statute~~
~~requiring such funds to be spent in a particular manner); City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 324–~~
~~26, 341 (1958) (permitting city’s exercise of eminent domain over state-owned lands to construct federally authorized~~
~~dam).~~
~~317 See Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004) (observing that “in some instances,” preemption of a state~~
~~restriction on municipal activity might “operate straightforwardly to provide local choice”).~~
~~318 H.R. 1783, 117th Cong. (2021).~~
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Table 1. Introduced Community Broadband Legislation
Bill No.
Short Title
Congress
Summary
S. 240 S. 240
Community Broadband Community Broadband
114th 114th
Would have prohibited state law from “prohibiting or Would have prohibited state law from “prohibiting or
Act Act
substantially inhibiting” provision of substantially inhibiting” provision of
telecommunications service by a public provider telecommunications service by a public provider
S. 597, H.R. S. 597, H.R.
States’ Rights Municipal States’ Rights Municipal
114th 114th
Would have amended Section 706 to explicitly permit Would have amended Section 706 to explicitly permit
1106 1106
Broadband Act Broadband Act
states to regulate municipal broadband states to regulate municipal broadband
H.R. 6013 H.R. 6013
Community Broadband Community Broadband
114th 114th
Would have amended Section 706 to explicitly forbid Would have amended Section 706 to explicitly forbid
Act Act
states from prohibiting or effectively prohibiting states from prohibiting or effectively prohibiting
municipal broadband municipal broadband
S. 2853 S. 2853
None None
115th 115th
Would have amended Section 706 to include language Would have amended Section 706 to include language
that would prevent the FCC from relying on Section that would prevent the FCC from relying on Section
706 as a grant of authority 706 as a grant of authority
H.R. 7302 H.R. 7302
Accessible, Affordable Accessible, Affordable
116th 116th
Would have amended Section 706 to prohibit states Would have amended Section 706 to prohibit states
(incorporated Internet for All Act (incorporated Internet for All Act
from forbidding provision of advanced from forbidding provision of advanced
into H.R. 2), into H.R. 2),
telecommunications capability by a public provider, telecommunications capability by a public provider,
S. 4131 S. 4131
public-private partnership, or cooperatively organized public-private partnership, or cooperatively organized
provider provider
H.R. 7363 CONNECT Act 116th Would have prohibited states or political subdivisions from offering broadband internet access service Source: CRS compilation of introduced bil s. CRS compilation of introduced bil s.
A bill corresponding to H.R. 7302 (116th Congress) has been introduced as H.R. 1783 A bill corresponding to H.R. 7302 (116th Congress) has been introduced as H.R. 1783 and S. 745 in the 117th in the 117th
~~Congress.319~~
~~Cable Operators~~
~~Lastly, the Commission has preempted state and local laws regulating cable operators in a manner~~
~~it deems inconsistent with Title VI, which is the portion of the Communications Act governing~~
~~cable communications.320 In particular, the Commission has (1) banned state and local~~
~~governments from taking actions it deems an “unreasonable refusal” to award a cable franchise,~~
~~(2) required state and local governments to count certain costs toward a statutory cap on cable~~
~~franchise fees, and (3) limited state and local governments from regulating non-cable services~~
~~provided by cable operators.321~~
~~CRS Report R46147,~~ ~~The Cable Franchising Authority of State and Local Governments and the~~
~~Communications Act, by Chris D. Linebaugh and Eric N. Holmes, discusses the FCC’s~~
~~preemption under Title VI and the legal issues raised by such preemption in more detail.~~
~~Consequently, this section only provides a brief overview of this topic.~~
~~Title VI~~
~~Title VI codifies a “deliberately structured dualism” in the regulation of cable.322 On the one~~
~~hand, Title VI gives the FCC authority over various operational aspects of cable such as technical~~

~~319 H.R. 1783, 117th Cong. (2021).~~
~~320 47 U.S.C. §§ 521–73.~~
~~321 CRS Report R46147,~~ ~~The Cable Franchising Authority of State and Local Governments and the Communications~~
~~Act, by Chris D. Linebaugh and Eric N. Holmes, discusses the FCC’s preemption under Title VI and the legal issues~~
~~raised by such preemption in more detail. Consequently, this section only provides a brief overview of this topic.~~
~~322 All. for Cmty. Media v. FCC, 529 F.3d 763, 767 (6th Cir. 2008)~~
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~~standards governing signal quality,323 ownership restrictions,324 and requirements for carrying~~
~~local broadcast stations.325~~Congress.317 A bill corresponding to H.R. 7363 (116th Congress) has been introduced as H.R. 1149 in the 117th Congress.318 314 See, e.g., Lawrence Cty. v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 257–61 (1985) (holding that a federal statute authorizing local government to spend payments “for any governmental purpose” preempts state statute requiring such funds to be spent in a particular manner); City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 324–26, 341 (1958) (permitting city’s exercise of eminent domain over state-owned lands to construct federally authorized dam). 315 See Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004) (observing that “in some instances,” preemption of a state restriction on municipal activity might “operate straightforwardly to provide local choice”). 316 H.R. 1783, S. 745, 117th Cong. (2021); S. 2071, 117th Cong. (2021); H.R. 1149, 117th Cong. (2021). 317 H.R. 1783, 117th Cong. (2021). 318 H.R. 1149, 117th Cong. (2021). Congressional Research Service 34 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act Cable Operators Lastly, the Commission has preempted state and local laws regulating cable operators in a manner it deems inconsistent with Title VI, which is the portion of the Communications Act governing cable communications.319 In particular, the Commission has (1) banned state and local governments from taking actions it deems an “unreasonable refusal” to award a cable franchise, (2) required state and local governments to count certain costs toward a statutory cap on cable franchise fees, and (3) limited state and local governments from regulating non-cable services provided by cable operators.320 Title VI Title VI codifies a “deliberately structured dualism” in the regulation of cable.321 On the one hand, Title VI gives the FCC authority over various operational aspects of cable such as technical standards governing signal quality,322 ownership restrictions,323 and requirements for carrying local broadcast stations.324 On the other hand, it preserves state authority by requiring cable On the other hand, it preserves state authority by requiring cable
operators to obtain a “franchise” from the relevant state or local authority in the region in which it operators to obtain a “franchise” from the relevant state or local authority in the region in which it
wishes to provide service.wishes to provide service.~~326~~325 It further allows state and local governments to place conditions on It further allows state and local governments to place conditions on
~~its~~the award of franchises, such as requiring cable operators to designate “channel capacity” for award of franchises, such as requiring cable operators to designate “channel capacity” for
public, educational, and government (PEG) programs.public, educational, and government (PEG) programs.~~327~~326
Title VI, nevertheless, places important limitations on state and local authority. In particular, it Title VI, nevertheless, places important limitations on state and local authority. In particular, it
caps the “franchise fees” charged to cable operators at 5% of the operator’s gross annual revenue caps the “franchise fees” charged to cable operators at 5% of the operator’s gross annual revenue
derived from cable services.derived from cable services.~~328~~327 Title VI also prevents franchising authorities (i.e., state and local Title VI also prevents franchising authorities (i.e., state and local
governments responsible for regulating cable operators) from “unreasonably refus[ing] to award governments responsible for regulating cable operators) from “unreasonably refus[ing] to award
an additional competitive franchise,”an additional competitive franchise,”~~329~~328 and it prohibits those authorities from regulating “video and it prohibits those authorities from regulating “video
programming or other information services.”programming or other information services.”~~330~~329
FCC Actions
In a series of orders, the FCC has sought to limit state and local authority over cable operators by In a series of orders, the FCC has sought to limit state and local authority over cable operators by
elaborating on Title VI’s restrictions. These orders have built on one another and have responded elaborating on Title VI’s restrictions. These orders have built on one another and have responded
to, and been shaped by, court decisions reviewing their legality. This subsection, consequently, to, and been shaped by, court decisions reviewing their legality. This subsection, consequently,
discusses the orders and court decisions together in chronological order. discusses the orders and court decisions together in chronological order.
319 47 U.S.C. §§ 521–573. 320 CRS Report R46147, The Cable Franchising Authority of State and Local Governments and the Communications Act, by Chris D. Linebaugh and Eric N. Holmes, discusses the FCC’s preemption under Title VI and the legal issues raised by such preemption in more detail. Consequently, this section only provides a brief overview of this topic. 321 All. for Cmty. Media v. FCC, 529 F.3d 763, 767 (6th Cir. 2008) 322 47 U.S.C. § 544(e); 47 C.F.R. §§ 76.601–76.640. 323 47 U.S.C. § 533; 47 C.F.R. §§ 76.501–76.502. 324 47 U.S.C. § 534; 47 C.F.R. § 76.56. 325 47 U.S.C. §§ 541(a)–(b), 522(10). 326 Id. §§ 531, 541(a)(4)(B). 327 Id. § 542. 328 Id. § 541. 329 Id. § 544(a), (b). Congressional Research Service 35 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act The FCC issued its first order on this issue in 2007 (First Cable Order).330 ~~The FCC issued its first order on this issue in 2007 (First Cable Order).331~~ In the First Cable In the First Cable
Order, the Commission sought to remove burdensome state and local requirements preventing Order, the Commission sought to remove burdensome state and local requirements preventing
new entrants into the cable market. It did this largely by clarifying when practices by franchising new entrants into the cable market. It did this largely by clarifying when practices by franchising
authorities amount to an “unreasonabl[e] refus[al]” to award a franchise.authorities amount to an “unreasonabl[e] refus[al]” to award a franchise.~~332~~331 The First Cable Order The First Cable Order
explained that such practices include, among other things, failing to make a final decision on explained that such practices include, among other things, failing to make a final decision on
franchise applications within timeframes specified in the order or requiring cable operators to franchise applications within timeframes specified in the order or requiring cable operators to
“build out” their cable systems to provide service to certain areas or customers as a condition of “build out” their cable systems to provide service to certain areas or customers as a condition of
granting the franchise.granting the franchise.~~333~~332 The First Order also provided guidance on which costs count toward the The First Order also provided guidance on which costs count toward the
5% franchise fee cap. Among other things, it explained that in-kind expenses unrelated to 5% franchise fee cap. Among other things, it explained that in-kind expenses unrelated to
provision of cable service—such as requests that the cable operator provide traffic light control provision of cable service—such as requests that the cable operator provide traffic light control
systems—count toward the 5% cap.systems—count toward the 5% cap.~~334~~333 Lastly, the FCC clarified the limits of franchising authority Lastly, the FCC clarified the limits of franchising authority
jurisdiction over “mixed-use” networks providing both cable and non-cable services. It jurisdiction over “mixed-use” networks providing both cable and non-cable services. It
maintained that, under Title VI, franchise authorities only have jurisdiction over cable services.maintained that, under Title VI, franchise authorities only have jurisdiction over cable services.~~335~~334
Consequently, the FCC said that franchising authorities may not withhold franchises based on Consequently, the FCC said that franchising authorities may not withhold franchises based on

~~323 47 U.S.C. § 544(e); 47 C.F.R. §§ 76.601–76.640.~~
~~324 47 U.S.C. § 533; 47 C.F.R. §§ 76.501–76.502.~~
~~325 47 U.S.C. § 534; 47 C.F.R. § 76.56.~~
~~326 47 U.S.C. §§ 541(a)–(b), 522(10).~~
~~327 Id. §§ 531, 541(a)(4)(B).~~
~~328 Id. § 542.~~
~~329 Id. § 541.~~
~~330 Id. § 544(a), (b).~~
~~331 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, 22 FCC Rcd. 5101 (2007)~~
~~[hereinafter First Order].~~
~~332 Id. at 5103.~~
~~333 Id. at 5134–37, 5142–43, paras. 66–73, 87–91.~~
~~334 Id. at 5149–50, paras. 105–108.~~
~~335 Id. at 5155, para. 121.~~
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~~issues related to non-cable services or facilities (the “mixed-use” rule).336~~issues related to non-cable services or facilities (the “mixed-use” rule).335 Although state and local Although state and local
franchising authorities and their representative organizations challenged the legality of the First franchising authorities and their representative organizations challenged the legality of the First
Cable Order, the Sixth Circuit denied those challenges.Cable Order, the Sixth Circuit denied those challenges.~~337~~336 In In Alliance for Community Media v.
FCC, the Sixth Circuit upheld both the FCC’s authority to issue rules construing Title VI and the , the Sixth Circuit upheld both the FCC’s authority to issue rules construing Title VI and the
specific rules in the First Cable Order itself.specific rules in the First Cable Order itself.~~338~~337
The First Cable Order applied only to new entrants to the cable market. However, the FCC The First Cable Order applied only to new entrants to the cable market. However, the FCC
shortly thereafter adopted another order (Second Cable Order) extending many of the First Cable shortly thereafter adopted another order (Second Cable Order) extending many of the First Cable
Order’s rulings to incumbent cable television service providers as well.Order’s rulings to incumbent cable television service providers as well.~~339~~338 Following the release Following the release
of the Second Cable Order, the Commission received three petitions for reconsideration, to which of the Second Cable Order, the Commission received three petitions for reconsideration, to which
it responded with a further order in 2015 (Reconsideration Order).it responded with a further order in 2015 (Reconsideration Order).~~340~~339 In the Reconsideration In the Reconsideration
Order, the FCC affirmed the Second Cable Order’s extension of the First Cable Order’s rulings to Order, the FCC affirmed the Second Cable Order’s extension of the First Cable Order’s rulings to
incumbent cable operators.incumbent cable operators.~~341~~340 Most notably, the Reconsideration Order also clarified that “in- Most notably, the Reconsideration Order also clarified that “in-
kind” (i.e., noncash) payments exacted by franchising authorities, even if kind” (i.e., noncash) payments exacted by franchising authorities, even if related to the provision to the provision
of cable service, may count toward the maximum 5% franchise fee allowable under Section of cable service, may count toward the maximum 5% franchise fee allowable under Section
622.622.~~342~~341
In 2017, in the case In 2017, in the case Montgomery County v. FCC, the Sixth Circuit vacated the FCC’s , the Sixth Circuit vacated the FCC’s
determinations in the Second Cable Order and Reconsideration Order on both the issue of determinations in the Second Cable Order and Reconsideration Order on both the issue of
330 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, 22 FCC Rcd. 5101 (2007) [hereinafter First Order]. 331 Id. at 5103. 332 Id. at 5134–37, 5142–43, paras. 66–73, 87–91. 333 Id. at 5149–50, paras. 105–108. 334 Id. at 5155, para. 121. 335 Id. 336 All. for Community Media v. FCC, 529 F.3d 763 (6th Cir. 2008). 337 Id. at 772–87. 338 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, 22 FCC Rcd. 19633 (2007) [hereinafter Second Cable Order]. 339 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, 30 FCC Rcd. 810 (2015) [hereinafter Reconsideration Order]. 340 Id. at 816, paras. 14–15. 341 Id. at 814–16, paras. 11–13. Congressional Research Service 36 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act incumbent providers and cable-related in-kind expenses.342~~incumbent providers and cable-related in-kind expenses.343~~ Regarding incumbent providers, the Regarding incumbent providers, the
court held that the FCC’s extension of its mixed-use network rule to incumbent cable providers court held that the FCC’s extension of its mixed-use network rule to incumbent cable providers
was “arbitrary and capricious” in violation of the Administrative Procedure Act (APA).was “arbitrary and capricious” in violation of the Administrative Procedure Act (APA).~~344~~343 To To
support its mixed-use rule, the FCC had relied on the statutory definition of “cable system,” support its mixed-use rule, the FCC had relied on the statutory definition of “cable system,”
which explicitly excludes common carrier facilities except to the extent they are “used in the which explicitly excludes common carrier facilities except to the extent they are “used in the
transmission of video programming directly to subscribers.”transmission of video programming directly to subscribers.”~~345~~344 However, the court explained that, However, the court explained that,
unlike most new entrants, incumbent cable providers are generally not common carriers.unlike most new entrants, incumbent cable providers are generally not common carriers.~~346~~345
Consequently, the Commission needed to identify a statutory provision that supported applying Consequently, the Commission needed to identify a statutory provision that supported applying
the mixed-use rule to non-common carrier entities, which it failed to do.the mixed-use rule to non-common carrier entities, which it failed to do.~~347~~346 Furthermore, the court Furthermore, the court
held that the Commission’s inclusion of cable-related in-kind expenses in the 5% franchise fee held that the Commission’s inclusion of cable-related in-kind expenses in the 5% franchise fee
cap was arbitrary and capricious.cap was arbitrary and capricious.~~348~~347 The court reasoned that the FCC gave “scarcely any The court reasoned that the FCC gave “scarcely any
explanation at all” for its decision to expand its interpretation of “franchise fee” to include cable-explanation at all” for its decision to expand its interpretation of “franchise fee” to include cable-
related exactions.related exactions.~~349~~

336 Id.
~~337 All. for Community Media v. FCC, 529 F.3d 763 (6th Cir. 2008).~~
~~338 Id. at 772–87.~~
~~339 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, 22 FCC Rcd. 19633 (2007)~~
~~[hereinafter Second Cable Order].~~
~~340 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, 30 FCC Rcd. 810 (2015)~~
~~[hereinafter Reconsideration Order].~~
~~341 Id. at 816, paras. 14–15.~~
~~342 Id. at 814–16, paras. 11–13.~~
~~343 863 F.3d 485 (6th Cir. 2017).~~
~~344 Id. at 493.~~
~~345 Second Cable Order, 22 FCC Rcd. 19633, 19640, para. 17 (2007).~~
~~346 Id. at 492–93.~~
347 Id.
~~348 Id. at 491–92~~
349 Id.
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348
In response to In response to Montgomery County, the FCC adopted a new order on August 1, 2019 (Third , the FCC adopted a new order on August 1, 2019 (Third
Cable Order), which clarifies its interpretations of the Cable Act.Cable Order), which clarifies its interpretations of the Cable Act.~~350~~349 Among other things, the order Among other things, the order
reiterates the FCC’s position that in-kind (i.e., non-monetary) expenses, even if related to cable reiterates the FCC’s position that in-kind (i.e., non-monetary) expenses, even if related to cable
service, may count toward the 5% franchise fee cap.service, may count toward the 5% franchise fee cap.~~351~~350 Per the Sixth Circuit’s admonition, the Per the Sixth Circuit’s admonition, the
FCC provided additional justification for this decision, reasoning that, among other things, the FCC provided additional justification for this decision, reasoning that, among other things, the
statutory definition of franchise fee is broad enough to encompass such expenses and none of the statutory definition of franchise fee is broad enough to encompass such expenses and none of the
specific statutory exceptions to this definition excludes them entirely.specific statutory exceptions to this definition excludes them entirely.~~352~~351 The Third Cable Order The Third Cable Order
also reiterates its application of the mixed-use rule to incumbents, relying this time on the Title VI also reiterates its application of the mixed-use rule to incumbents, relying this time on the Title VI
provision prohibiting franchising authorities from “establish[ing] requirements for video provision prohibiting franchising authorities from “establish[ing] requirements for video
programming or other information services.”programming or other information services.”~~353~~352
Beyond clarifying that franchising authorities cannot use their Title VI authority to regulate the Beyond clarifying that franchising authorities cannot use their Title VI authority to regulate the
non-cable aspects of a mixed-use cable system, the Third Cable Order explicitly preempts state non-cable aspects of a mixed-use cable system, the Third Cable Order explicitly preempts state
and local laws that “impose[] fees or restrictions” on cable operators for the “provision of non-and local laws that “impose[] fees or restrictions” on cable operators for the “provision of non-
cable services in connection with access to [public] rights-of-way, except as expressly authorized cable services in connection with access to [public] rights-of-way, except as expressly authorized
in [Title VI].”in [Title VI].”~~354~~353 The Commission responded specifically to an Oregon Supreme Court case, The Commission responded specifically to an Oregon Supreme Court case, City
of Eugene v. Comcast. In this case, the court upheld the City of Eugene's imposition of a 7% . In this case, the court upheld the City of Eugene's imposition of a 7%
fee—pursuant to a city ordinance, rather than the franchising process—on the revenue a cable fee—pursuant to a city ordinance, rather than the franchising process—on the revenue a cable
operator generated from its provision of broadband internet services.operator generated from its provision of broadband internet services.~~355~~354 The Third Cable Order The Third Cable Order
rejects rejects City of Eugene’s conclusion, however, and preempts the type of state regulation that case ’s conclusion, however, and preempts the type of state regulation that case
342 863 F.3d 485 (6th Cir. 2017). 343 Id. at 493. 344 Second Cable Order, 22 FCC Rcd. 19633, 19640, para. 17 (2007). 345 Id. at 492–93. 346 Id. 347 Id. at 491–92 348 Id. 349 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, 34 FCC Rcd. 6844 (2019) [hereinafter Third Cable Order]. 350 Id. at 6850–52, para. 12. 351 Id. at 6849–58, paras. 11–22. 352 Id. at 6883, para. 122 (citing 47 U.S.C. § 544(b)(1)). 353 Id. at 6892–93, para. 88. 354 375 P.3d 446, 450–51, 463 (Or. 2016). Congressional Research Service 37 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act upheld.355~~upheld.356~~ The FCC reasoned that Title VI establishes the “basic terms of a bargain” by which a The FCC reasoned that Title VI establishes the “basic terms of a bargain” by which a
cable operator may “access and operate facilities in the local rights-of-way.”cable operator may “access and operate facilities in the local rights-of-way.”~~357~~356 It explained that, It explained that,
although Congress was “well aware” that cable systems would carry non-cable services as well as although Congress was “well aware” that cable systems would carry non-cable services as well as
cable, it nevertheless “sharply circumscribed” the authority of state and local governments to cable, it nevertheless “sharply circumscribed” the authority of state and local governments to
“regulate the terms of this exchange.”“regulate the terms of this exchange.”~~358~~357
Several cities, franchising authorities, and advocacy organizations Several cities, franchising authorities, and advocacy organizations ~~have~~ filed petitions for review filed petitions for review
of the Third Cable Order in various courts of appeals,of the Third Cable Order in various courts of appeals,~~359~~358 and these petitions and these petitions ~~have been~~
were consolidated and transferred to the Sixth Circuit.consolidated and transferred to the Sixth Circuit.~~360 These petitioners generally allege that~~359 The Sixth Circuit largely upheld the the
~~Third Cable Order violates the Communications Act and the U.S. Constitution and is arbitrary~~
~~and capricious under the APA.361 The same parties filed a motion with the FCC to stay the Third~~

~~350 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, 34 FCC Rcd. 6844 (2019)~~
~~[hereinafter Third Cable Order].~~
~~351 Id. at 6850–52, para. 12.~~
~~352 Id. at 6849–58, paras. 11–22..~~
~~353 Id. at 6883, para. 122 (citing 47 U.S.C. § 544(b)(1)).~~
~~354 Id. at 6892-93, para. 88.~~
~~355 375 P.3d 446, 450–51, 463 (Or. 2016).~~
~~356 Third Order, 2019 WL 3605129, at *30, para. 80.~~
~~357 Id. at *32, para. 84.~~
~~358 Id. at *33, para. 88~~
~~359~~Third Cable Order in City of Eugene v. FCC.360 In its decision, the Sixth Circuit determined that the FCC’s inclusion of cable-related in-kind expenses in the 5% franchise fee cap was not arbitrary and capricious.361 Addressing the FCC’s “mixed-use” rule, and specifically the FCC’s repudiation of City of Eugene v. Comcast, the Sixth Circuit opined that whether a franchising authority has overstepped its power depends on “whether state or local action is ‘inconsistent with’ a specific provision of the [Communications] Act.”362 The court held that the imposition of broadband service fees on a cable operator would be inconsistent with the Title VI provision prohibiting franchising authorities from “establish[ing] requirements for video programming or other information services.”363 Accordingly, the Sixth Circuit held that the FCC may preempt the City of Eugene’s imposition of a broadband service fee on cable operators.364 The court rejected the FCC’s proposed standard for calculating the monetary value of in-kind exactions, holding that the value of these exactions should be calculated based on a cable operator’s cost, rather than their “market value.”365 Conclusion The scope of the FCC’s preemption authority is not simply an academic issue. The Commission’s authority to displace state law is central to many of its regulatory initiatives and continues to be litigated in federal courts. Delineating the contours of the FCC’s preemption authority can become complex once specific statutory provisions are brought to bear on particular issues. However, at its core the analysis involves applying the basic principles of preemption. As with preemption generally, Congress’s purpose is the ultimate “touchstone” for determining the scope 355 Third Cable Order, 34 FCC Rcd. at 6889, para. 80. 356 Id. at 6891, para. 84. 357 Id. at 6892, para. 88. 358 See City of Pittsburgh v. FCC, No. 19-3478 (3d Cir. Oct. 28, 2019); State of Hawaii v. United States, No. 19-72699 City of Pittsburgh v. FCC, No. 19-3478 (3d Cir. Oct. 28, 2019); State of Hawaii v. United States, No. 19-72699
(9th Cir. Oct. 24, 2019); Anne Arundel Cty. v. FCC, No. 72760 (D.C. Cir. Oct. 24, 2019); All. for Commc’ns (9th Cir. Oct. 24, 2019); Anne Arundel Cty. v. FCC, No. 72760 (D.C. Cir. Oct. 24, 2019); All. for Commc’ns
Democracy v. FCC, No. 19-72736 (D.C. Cir. Oct. 23, 2019); Pet. for Rev., City of Portland v. United States, No. 19-Democracy v. FCC, No. 19-72736 (D.C. Cir. Oct. 23, 2019); Pet. for Rev., City of Portland v. United States, No. 19-
72391 (9th Cir. Sept. 19, 2019); Pet. for Rev., City of Eugene v. FCC, No. 19-72219 (9th Cir. Aug. 30, 2019).72391 (9th Cir. Sept. 19, 2019); Pet. for Rev., City of Eugene v. FCC, No. 19-72219 (9th Cir. Aug. 30, 2019).
~~360~~ 359 City of Eugene v. FCC, No. 19-72391 (9th Cir. Nov. 26, 2019) (order granting motion to consolidate petitions and City of Eugene v. FCC, No. 19-72391 (9th Cir. Nov. 26, 2019) (order granting motion to consolidate petitions and
transfer petitions to the Sixth Circuit); City of Eugene v. FCC, No. 19-4161 (6th Cir. Dec. 2, 2019) (docketing case in transfer petitions to the Sixth Circuit); City of Eugene v. FCC, No. 19-4161 (6th Cir. Dec. 2, 2019) (docketing case in
the Sixth Circuit). the Sixth Circuit).
~~361 See, e.g., Pet. for Rev. at 2, City of Eugene v. FCC, No. 19-72219 (9th Cir. Aug. 30, 2019); Pet. for Rev. at 2, City~~
~~of Portland v. United States, No. 19-72391 (9th Cir. Sept. 19, 2019).~~
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~~Cable Order, which the Commission denied.362 The Petitioners also filed a motion to stay the~~
~~order pending appeal, which the Sixth Circuit denied.363 Oral argument in the case has been~~
~~scheduled for April 2021.364~~
~~Conclusion~~
~~The scope of the FCC’s preemption authority is not simply an academic issue. The Commission’s~~
~~authority to displace state law is central to many of its regulatory initiatives and continues to be~~
~~litigated in federal courts. Delineating the contours of the FCC’s preemption authority can~~
~~become complex once specific statutory provisions are brought to bear on particular issues.~~
~~However, at its core the analysis involves applying the basic principles of preemption. As with~~
~~preemption generally, Congress’s purpose is the ultimate “touchstone” for determining the scope~~
~~of the FCC’s preemption authority.365~~360 998 F.3d 701 (6th Cir. 2021). 361 Id. at 708–09. 362 Id. at 711. 363 Id. at 715; see 47 U.S.C. § 544(c). 364 City of Eugene v. FCC, 998 F.3d at 715. Though the Sixth Circuit focused on the mixed-use rule as applied to the City of Eugene, the court’s reasoning suggests that it may uphold similar FCC attempts to preempt state and local “mixed-use” requirements based on the FCC’s theory that these requirements are inconsistent with Title VI. 365 Id. at 710. Congressional Research Service 38 link to page 9 link to page 13 Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act of the FCC’s preemption authority.366 Courts determine this purpose by examining the FCC’s Courts determine this purpose by examining the FCC’s
regulatory authority and any specific statutory provisions limiting its ability to preempt state regulatory authority and any specific statutory provisions limiting its ability to preempt state
laws.laws.~~366~~367 This analysis is also informed by federalism considerations This analysis is also informed by federalism considerations, with courts on rare occasions on rare occasions~~, with courts~~
requiring a clear statement from Congress authorizing the FCC to preempt state law in a way that requiring a clear statement from Congress authorizing the FCC to preempt state law in a way that
upsets the usual balance between the state and federal government.upsets the usual balance between the state and federal government.~~367~~368
Any congressional attempts to address the FCC’s authority to preempt may benefit from Any congressional attempts to address the FCC’s authority to preempt may benefit from
consideration of each of these issues. To ensure that the Commission has jurisdictional authority consideration of each of these issues. To ensure that the Commission has jurisdictional authority
to preempt, any desired exercise of preemption should arise under a regulatory function delegated to preempt, any desired exercise of preemption should arise under a regulatory function delegated
to the FCC—and, should Congress so desire, it may delegate new functions to the FCC by to the FCC—and, should Congress so desire, it may delegate new functions to the FCC by
statute.statute.~~368~~369 If Congress seeks to address the bounds of specific statutory limits on the If Congress seeks to address the bounds of specific statutory limits on the
Commission’s preemption authority, it may explicitly spell out those limits. And to mitigate Commission’s preemption authority, it may explicitly spell out those limits. And to mitigate
constitutional concerns in areas that might disrupt the “normal constitutional balance,” ensuring constitutional concerns in areas that might disrupt the “normal constitutional balance,” ensuring
that any preemptive language is a “clear statement” of congressional intent to preempt could that any preemptive language is a “clear statement” of congressional intent to preempt could
remain key.remain key.~~369~~370

Author Information

Chris D. Linebaugh Chris D. Linebaugh
Eric N. Holmes Eric N. Holmes
Legislative Attorney Legislative Attorney
Legislative Attorney Legislative Attorney

~~362 Order Denying Mot. for Stay, Implementation of Section 621(a)(1) of the Cable Communications Policy Act of~~
~~1984, MB Docket No. 05-311, DA 19-1149, 2019 WL 5861929 (Nov. 6, 2019).~~
~~363 Per Curiam Op., City of Eugene v. FCC, No. 19-4161 (6th Cir. Mar. 19, 2020), ECF No. 32.~~
~~364 City of Eugene v. FCC, No. 19-4161 (6th Cir. Feb. 18, 2021), ECF No. 66. While a detailed discussion is beyond~~
~~the scope of this report, this case raises complex issues of statutory interpretation, as well as administrative and~~
~~constitutional law, as discussed in more detail in CRS Report R46147,~~ ~~The Cable Franchising Authority of State and~~
~~Local Governments and the Communications Act, by Chris D. Linebaugh and Eric N. Holmes.~~
~~365 Wyeth v. Levine, 555 U.S. 555, 565 (2009).~~
~~366 See, e.g., “Overview of the FCC’s Preemption Authority Under the Communications Act,” supra.~~
~~367 See, e.g., “Clear Statement Rule,” supra.~~
~~368 See Mozilla, 940 F.3d 1, 75 (D.C. Cir. 2019).~~
~~369 See Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004).~~
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Disclaimer
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366 Wyeth v. Levine, 555 U.S. 555, 565 (2009). 367 See, e.g., “Overview of the FCC’s Preemption Authority Under the Communications Act,” supra. 368 See, e.g., “Clear Statement Rule,” supra. 369 See Mozilla, 940 F.3d 1, 75 (D.C. Cir. 2019). 370 See Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004). Congressional Research Service Congressional Research Service
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