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CITY OF ABILENE, TEXAS v. F.C.C.

Nos. 97-1633, 97-1634.

164 F.3d 49 (1999)

CITY OF ABILENE, TEXAS, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. State of Texas, et al., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided January 5, 1999.

Attorney(s) appearing for the Case

James Baller, Washington, DC, argued the cause for petitioner. With him on the briefs were Sean Stokes and Lana Meller.

James M. Carr, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Joel I. Klein, Assistant Attorney General, U.S. Department of Justice, Catherine G. O'Sullivan and Andrea Limmer, Attorneys, Christopher J. Wright, Washington, DC, General Counsel, Federal Communications Commission, Daniel M. Armstrong, Associate General Counsel, and John E. Ingle, Deputy Associate General Counsel, Washington, DC.

James D. Ellis, Patricia Diaz Dennis, David F. Brown, Michael K. Kellogg, Geoffrey M. Klineberg, Washington, DC, Durward D. Dupre and Michael J. Zpevak, Dallas, TX, were on the brief for intervenor Southwestern Bell Telephone Company. Robert M. Lynch entered an appearance.

Elizabeth R. Sterling, Assistant Attorney General, was on the brief for intervenor State of Texas.

Jeffrey L. Sheldon, Washington, DC and Sean A. Stokes were on the briefs for intervenor UTC, The Telecommunications Association.

Before: RANDOLPH, ROGERS, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

The State of Texas has a law prohibiting its municipalities from providing telecommunications services. The United States has a law against state statutes that bar "any entity" from this line of business. If a Texas municipality is "any entity," the Supremacy Clause, U.S. CONST. art. VI, cl. 2, would render the Texas law a nullity, or so it is claimed. In legal parlance, the federal...

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