Cellular association CTIA may yet get language introduced-perhaps even added-to telecom reform legislation that would expand federal pre-emption beyond that approved by Congress in 1993. Whether an amendment further curtailing state wireless jurisdiction would have enough staying power to survive a House-Senate conference is another question. It is unclear, for that matter, whether lawmakers and industry lobbyists will talk themselves silly over net neutrality without getting a major telecom bill approved this year.
If net neutrality were not Topic A in telecom reform legislation, it would be something else. The point is, federal pre-emption, as important as it is to mobile-phone carriers, is simply eclipsed by other issues. Moreover, pre-emption is among the most combustible and complex of policy issues-especially if you are asking a GOP-controlled Congress to expand federal powers at the expense of states rights.
As such, when I read unnamed lobbyists are angry at CTIA President Steve Largent for not delivering pre-emption in the telecom reform debate, I wonder just how realistic association members are about the difficulty of having Congress tell states they have even less oversight of wireless carriers than they now have.
History is instructive. The 1993 law that pre-empted states from regulating rates and market entry of wireless carriers was the compromise of a nasty fight between the cellular industry and cities and states. Undoing that deal is risky business. Another point: While telecom reform legislation is the logical vehicle for broader pre-emption, it’s not necessarily the best one.
Indeed, the biggest wireless legal gains during the past decade have occurred not in telecom legislation, but rather in major budget bills. This was not altogether by accident. Back in another budget deficit era-the early 1990s-lawmakers and the Clinton administration realized the potential economic gains of auctioning spectrum and introducing new competition to the-then cellular duopoly. Policy-makers did not want states to muck it up, but also could not easily ignore legal arguments and possible political consequences of shutting out the nation’s mayors and governors. Thus, a meeting of the minds on federal pre-emption. In a 1997 budget bill, Congress approved legislation transferring frequencies from the government and TV broadcasters to public safety and the wireless industry. Lawmakers also gave their blessing to spectrum flexibility in the ’97 budget measure.
Expanding pre-emption is a tall order, but not impossible. That the wildly successful cellular industry boasts 215 million subscribers under the current regulatory regime could prompt lawmakers to wonder what the big deal is anyway. They may decide another battle over federal pre-emption is not worth it.
