State laws affecting the authority of public entities to provide communications services in .NET

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442 State laws affecting the authority of public entities to provide communications services
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4421 Dillon s Rule states Under Dillon s Rule, 6 the authority of a municipality is strictly construed to include only those powers that the state s constitution or legislature have expressly granted to it, or that are necessarily implied or incidental to powers expressly granted In some states, the rule is codi ed, and in others it is judge-made Occasionally, a state has both codi ed and judge-made versions that are in apparent con ict (eg, South Carolina) Where the rule exists, silence is generally construed against public authority to provide communications services If a government entity is in a Dillon s Rule state, one must, if possible, justify the speci c communications activity in question as a reasonable extension of a power otherwise granted7 4422 Home Rule states In Home Rule states, home rule or charter cities are generally deemed to be able to exercise any powers, and perform any functions, that are not expressly denied by the state s constitution or statutes, or by the municipality s own Home Rule charter Many states including Iowa itself
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6 Dillon s
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Rule is named for John Dillon, the chief judge of the Iowa Supreme Court, who rst articulated it in Merriam v Moody s Executors, 25 Iowa 163, 170 (1868) 7 For two examples of such analyses, see an opinion by the Attorney General of Ohio nding that vocational schools can purchase hardware and software for a system to provide Internet access to its students and then offer Internet access for a fee to other entities and individuals See http://wwwagstateohus/opinions/1999/99-007htm; and another opinion by the Attorney General of Ohio nding that a county s authority to incur debt for a telecommunications project can be derived from its authority to take actions to promote economic development and create jobs http://wwwagstateohus/sections/opinions/2004/2004%2D005pdf
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have wholly or partially repudiated Dillon s Rule In Home Rule states, local governments have a great degree of autonomy and are often able to act in both a sovereign and a proprietary capacity It is very important to understand exactly how a state s Home Rule provision works For example, in some states, only certain public entities are covered Sometimes the state rule has presumptions that apply in certain situations but not others8 Some states have broad Home Rule language but the courts interpret the language narrowly9 If a public entity would qualify for coverage by a state s constitutional or statutory Home Rule measure, one must ensure that the entity has followed, or will follow, all appropriate procedures necessary to take advantage of the measure 4423 State measures Some states have expressly granted local governments broad authority to provide communications services See, eg, Ala Code Section 11 50B 3; Ariz Rev Stat Section 9 511(A), 9 514(A) (with voter approval); California Const, Article XI, Section 9(a) and Cal Pub Utilities Code Section 10001; 54 Cal Atty Gen Ops 135 (1971) and Fla Sat Ch XII, Section 166047; OCGA Sections 46 5 163(b) and 46 5 163(17) (Georgia); Oregon Revised Statutes Section 759020; Va Code Section 152 2160 (competitive local exchange services) and Section 56 4847:1 ( qualifying communications services ) Some states authorize local governments to provide some services but not others Examples of partial barriers include: 1 Missouri prohibits the state s political subdivisions from providing all telecommunications services and facilities other than services to telecommunications providers (under certain circumstances), services for internal use, services for medical and educational purposes, emergency services and Internet-type services Revised Statutes of Missouri Section 392410(7) (Declared unconstitutional in the Missouri Municipal League case) 2 Tennessee bans municipal provision of paging and security services but allows provision of cable, two-way video, video programming, Internet and other like services only upon satisfying various anticompetitive public disclosure, hearing and voting requirements that a private provider would not have to meet Tenn Code Ann Section 7 52 601 et seq 3 Washington expressly authorizes Public Utility Districts to provide wholesale telecommunications services, but not retail services RCW Section 5416330 Some states have enacted outright prohibitions on municipal telecommunications activities Examples are: 1 Texas bars municipalities and municipal electric utilities from offering telecommunications services or facilities, directly, or indirectly, through private telecommunications providers Texas Pub Util Code Section 54202 et seq
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