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News Release
March 11, 2003
CONTACT: David Fish
(202) 289-8928

Bogus Federalism:
FCC Regs Not States' Rights Issue

May Chides Fellow Conservatives, Predicts FCC Court Defeat

WASHINGTON, D.C. - A gaggle of conservative groups not known for their expertise in telecommunications policy lent their names to an advertising campaign against FCC Chairman Michael Powell’s efforts to relax network-sharing regulations. According to The Progress & Freedom Foundation’s Randolph J. May, those ads relied on a “trumped-up states rights argument.” In fact, May says the argument flies in the face of a Supreme Court opinion written by conservative icon Justice Antonin Scalia, a jurist generally regarded as sympathetic to states’ rights.

“The American Conservative Union and other conservative organizations let themselves get hijacked by AT&T and WorldCom, and state utility commissioners, for distinctly pro-regulatory purposes,” May writes in his regular column for Legal Times. “Looking down from their heavenly haunts, John Marshall and Thomas Jefferson must have rolled their eyes.” May believes “those two founding-generation giants epitomized the serious constitutional debate in the nation’s early years concerning the proper role of the states,” and that interjecting federalism into the FCC’s decision concerning network sharing “trivializes legitimate concerns about maintaining a proper state role in other contexts.”

According to May, senior fellow and director of communications policy studies at the Foundation, the 1996 Telecommunications Act “effected a paradigm shift by curtailing the states’ previous authority to regulate ‘local’ facilities” because of the interstate nature of new networks.

Scalia, writing for the majority in the 1999 Iowa decision, held that the Act made local competition regulations part of the “federal regime,” and that “a federal program administered by 50 independent state agencies is surpassing strange.” Unfortunately, according to May, the FCC majority ignored the Court and “punted the [sharing] issue to the individual states, subject to vague guidance,” setting the stage for “yet another defeat in the courts for the FCC’s network sharing rules.” He said the “resulting uncertainty can’t be good for an already beaten-down industry.”

The Progress & Freedom Foundation is a market-oriented think tank that studies the impact of the digital revolution and its implications for public policy. The Foundation is a 501(c)(3) nonprofit organization founded in 1993.



The Progress & Freedom Foundation