Give Peace A Chance: FCC-State Relations After California III

The Communications Act of 1934 established a dual regulatory scheme, whereby the FCC has authority over interstate telecommunications service, while the states retain authority over purely intrastate telecommunications. This has led to a border war between the FCC and the states over exactly where the dividing line between their respective regulatory spheres lies. They have also clashed over the scope of permissible FCC preemption of state regulatory authority when that authority conflicts with federal policies. After twenty years of conflict, however, three recent appellate decisions may have provided an opportunity to bring the conflict to an end by clarifying both the boundary between state and federal regulatory authority, and the situations in which the FCC can preempt state regulatory authority. The Author first examines the basis and history of the FCC-state conflict. While it at first appeared that the FCC\u27s authority versus the states in both the regulatory and preemption spheres would be interpreted very broadly by the courts, later decisions forced the FCC into a strategic retreat from its aggressive regulatory approach. The Author then, relying on three recent appellate decisions, outlines four principles of peaceful coexistence, or guidelines for determining where the dividing line between FCC and state regulatory authority lies and when the FCC can preempt state regulatory policies. The Author argues that: (1) jurisdiction is determined on and end-to-end basis; (2) the FCC has plenary jurisdiction over interstate communications services and facilities; (3) the states are entitled to regulate intrastate communications and facilities; and (4) the FCC may preempt state regulations applicable to carrier-provided intrastate communications facilities or services to the extent enforcement of such regulations would prevent the application of federal regulations to interstate carrier-provided communications services or facilities. Finally, the Author anticipates new areas of potential conflict, and offers preliminary analyses of the issues that might arise