The U.S. Supreme Court Mon. granted a review of an 8th U.S. Appea...

facilities. Petitions for writs of certiorari had been filed by the FCC, the state of Mo. and Southwestern Bell. The Supreme Court’s intervention is expected to resolve the conflict between decisions of the 8th Circuit and the U.S. Appeals Court, D.C., which ruled in the FCC’s favor in City of Abilene (Tex.) v FCC. In declining to preempt the Mo. statute, the FCC had ruled that the term “any entity” in Sec. 253(a) of the Telecom Act wasn’t intended to include political subdivisions of a state but rather “appeared to prohibit” restrictions on market entry that applied to independent entities. The Commission had held that if municipally owned utilities had sought to provide telecom service as independent corporate entities, it would have reached a different conclusion. However, the 8th Circuit ruled that there was no doubt that municipalities and municipally owned utilities were entities under the standard definition of the term. Although municipalities in Mo. derive all their powers from the state and although the state can control its subdivisions in an “almost limitless way,” municipalities and its subdivisions have an existence separate from that of the state, the court held in a challenge brought by Mo. municipalities. The FCC said the 8th Circuit’s ruling conflicted with that the D.C. Circuit, “thus placing the FCC in the position of having to give effect to diametrically opposite court opinions.” The Commission said the questions at issue in the case could be expected to be raised again because several states had statutes similar to the Mo. law and could be subject to attack under Sec. 2539(a) of the Telecom Act, and still others could enact such laws. “The Supreme Court’s decision to grant immediate review will expedite a final resolution of the controversy,” said attorney James Baller, who represents the Mo. municipalities. Currently, 12 states have some barriers to entry for municipalities, and “those will fall by the wayside,” as will those being considered in other states, said Alan Richardson, pres. of the American Public Power Assn.: “We believe that the 8th Circuit decision would have been followed by courts across the country even if the Supreme Court had not granted certiorari.” USTA Senior Vp- Law &Policy Daniel Phythyon said: “We are encouraged that the Supreme Court has agreed to hear this important case. The conflicts between the lower court rulings on this critical issue have created considerable uncertainty in the telecom industry and we hope the court will act swiftly to help clarify the role of the states."