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The Federal Communications Commission must be scratching its head over a pair of decisions that send a mixed message about the right of municipal utilities to enter the telecommunications arena. On Aug. 14, the 8th U.S. Circuit Court of Appeals ruled that the state of Missouri may not prohibit its municipalities from providing telecommunications services. Missouri Mun. League v. FCC, No. 01-1379. That decision flies in the face of a 1999 case — City of Abilene v. FCC, 164 F.3d 49 — in which the D.C. Circuit held that Texas may keep its municipalities out of the telecommunications fray. Both decisions look back to the Telecommunications Act of 1996, a federal law designed to break up monopoly strangleholds on telephone service. The act says that, “No State or local statute … may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” 47 U.S.C. � 253(a). In addition, the act directs the commission to step in to prevent the enforcement of any state law to the contrary. Both Texas and Missouri have statutes prohibiting their municipalities from providing telecommunications services. Given that a municipal utility is an entity, and that the 1996 act sweeps away barriers preventing “any entity” from entering the market, the natural conclusion would seem to be that the two state statutes are unenforceable. That was, in fact, the 8th Circuit’s reasoning and conclusion. How did the D.C. Circuit come to a different conclusion? Because of concerns about the federal government’s constitutional duty to respect the prerogatives of the states, the U.S. Supreme Court has insisted that Congress speak with unmistakable clarity when trespassing in areas that have traditionally been the province of state governments. Regulation of municipalities is one such area. In fact, in many areas of the law, municipalities are considered mere subdivisions of the states and not independent entities. The D.C. Circuit held, in effect, that the act’s “any entity” language was too offhand to stand as proof that Congress really, really meant to free municipalities from state control. The 8th Circuit was not persuaded, arguing that its sister circuit had overlooked a long line of cases in which the Supreme Court “has held that the modifier ‘any’ prohibits a narrowing construction of a statute.” MUNICIPAL LIABILITY An Aug. 18 decision by the 3rd Circuit highlights a circuit conflict on another issue affecting municipalities — whether a person injured by the actions of municipal employees can make out a claim that the municipality violated his substantive due process rights even if the individual employees did not commit a constitutional violation. Brown v. Pennsylvania, No. 01-3234. In 1986′s City of Los Angeles v. Heller, 475 U.S. 796, the Supreme Court first rejected a claim that a police officer had violated a suspect’s rights by arresting him without probable cause and using excessive force. The Court then concluded that the suspect had no claim against the municipality that employed the officer, even if the way it hired, trained and supervised its officers was inadequate to prevent constitutional violations as a general matter. Several circuits — including the 1st, 4th, 7th and 10th — have read Heller as establishing a general rule that a municipality cannot be held liable on constitutional grounds if the employees who acted on its behalf are found not to have violated the constitution. Both the 3rd and 9th Circuits believe that Heller should not be rigidly applied when an injured person’s claims against the municipality and its employees rest on different theories. For example, though a police officer’s conduct during a high-speed chase may not “shock the conscience” (the threshold for a constitutional violation by an individual), a municipality may nonetheless have shown “deliberate indifference” in setting policy on high-speed chases. The cases discussed in this column are selected with the assistance of Washington, D.C., practitioner Thomas Goldstein.

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