Supreme Court Seeks Govt. Counsel on Whether to Review Minn. Wireless Law
The Supreme Court this week asked the U.S. Solicitor General for advice on whether to hear a Minn. appeal of an 8th U.S. Appeals Court, St. Louis, decision overturning a state law making wireless carriers get customer approval before raising rates mid-contract. Wireless carriers led by Verizon Wireless oppose the appeal.
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In a unanimous Dec. decision, the 8th Circuit overturned a lower court, holding a 2004 law “constitutes impermissible rate regulation preempted by federal law.” Justices asked Solicitor Gen. Paul Clement to weigh in for the govt. The case is being scrutinized by wireless carriers since it has national implications as they fight state controls on rates and contracts. “It is very important,” Michael Altschul, CTIA gen. counsel, said: “When the case was pending before the 8th Circuit, the FCC filed a brief supporting the wireless carriers’ position that Sect. 332c of the Communications Act preempted the Minn. legislation. Since the court of appeals agreed, we do not anticipate any change in the government’s position.”
Carriers are watching the case closely, Altschul said: “This is the first case from a U.S. court of appeals to interpret the scope of Sect. 332 in one of these situations, since it’s the only case it’s an important case. We certainly have identified what we call a national framework for wireless service and rules as our priority.” Wireless carriers support vigorous enforcement of consumer protection rules but oppose rules of this kind that apply only to wireless, he said.
CTIA and its members are fighting state regulation on other fronts as well. Last month, the U.S. Appeals Court, Atlanta, heard oral arguments in a NASUCA/NARUC appeal of the FCC truth in billing order, which raises similar issues. A further notice of proposed rulemaking on truth in billing has been pending at the FCC since last year.
“If a ban on state rate regulation means anything, it encompasses state action that fixes or freezes rates” when customers don’t agree to increases, wireless carriers said in a filing with Supreme Court.
In a pleading at the 8th Circuit, the FCC said the 1993 Omnibus Budget Reconciliation Act dramatically changed the regulatory landscape. “Congress eliminated the dual federal and state frameworks for rate and entry regulation, establishing instead a uniform ‘national regulatory policy for CMRS, not a policy that is balkanized state-by-state,'” the Commission said. The 8th Circuit agreed.
CTIA Pres. Steve Largent Tues. asked the Senate Commerce Committee to put in pending telecom legislation a provision further clarifying federal oversight’s primacy on wireless regulation. “Opponents to the continued national, light- touch regulation Congress put in place in 1993 claim they are trying to protect wireless consumers,” Largent said: “Here is the pivotal question you need to be asking - protect wireless consumers from what? Lower prices? More providers to choose from? More choices among rate plans? Innovative new devices with features like camera phones that are sleekly designed?”