**FCC Local and State Government Advisory Committee**

**Advisory Recommendation Number 20:**

**Petition for Declaratory Ruling, Communications Act Provisions, and
FCC Jurisdiction Regarding Preemption of State Court Rules Awarding
Monetary Damages Against Commercial Mobile Radio Service Providers for
Violation of Consumer Protection or Other State Laws, WT Docket No.
99-263**

On July 28, 1999, the Federal Communications Commission (FCC) invited
public comment on whether the Telecommunications Act of 1996
(Telecommunications Act) preempts state and local jurisdictions from
bringing actions against wireless mobile service providers for violating
state consumer protection laws or actions for wrongful conduct brought
by way of contract claims or tort actions.

The continued availability of state consumer protection statutes and the
ongoing availability of the rights and remedies thereunder, are
important to state and local government. Such laws and their associated
regulations allow state and local government, as well as the consumer,
to protect against unscrupulous providers who promise the world but
deliver nothing. Because of its importance, the Federal Communications
Commission Local and State Government Advisory Committee (LSGAC) offers
the following comments:

I. The LSGAC lacks the resources that would allow it to do the factual

research necessary to take a stand as to the facts of [Wireless Consumer
Alliance v. Los Angeles Cellular Telephone Company]{.underline}, which
is the impetus for the Petition for Declaratory Ruling. The LSGAC notes,
however, that in its Petition for Declaratory Ruling, the Wireless
Consumer Alliance (WCA) asserted that a decision by the FCC on this
matter would not involve delving into the facts of the Los Angeles case.
According to the WCA, the issue is merely that of preemption: does the
Telecommunications Act of 1996 preempt a state court from awarding
damages for violations of state consumer protection laws.

II\. A possible outcome of this proceeding is preemption of state action
by

way of a declaratory ruling. It is the position of the LSGAC that a
declaratory ruling is not the proper method to preempt state action,
should preemption be appropriate.

As a matter of principal, the LSGAC has grave concern with regard to

preemption of state and local government authority. Historically, the
LSGAC has expressed its concern for preemptive actions. For instance, in
Advisory Recommendation Number 4 dealing with preemption of zoning
moratoria on tower siting facilities, the LSGAC noted \"It is not in the
federal interest to seem to assume control over\...essentially local
matters. No uniform national solution can meet all the varied local
circumstances.\"

III\. Consumer protection has primarily been a state \-\--not a
federal\-\--matter.

Specifically, consumer protection has been handled by states through the
development of various consumer protection statutes. There are broad
policy implications in preempting an area of law that has been
traditionally reserved for state and local authorities. Moreover, to the
extent that such matters are purely intrastate, it is by no means clear
that the FCC could properly preempt state regulation. See, e.g.,
[Louisiana Public Service]{.underline}

[Commission v. FCC]{.underline}, 476 U.S. 355 (1986).

IV\. Further, the Telecommunications Act does not limit state and local

government from issuing rules, regulations, and policies designed to
protect consumer interests. Although section 332(c)(3)(A) of the
Telecommunications Act prohibits local or state government from
regulating entry or rates of commercial and private mobile service
providers, it does not prohibit state and local government from bringing
consumer protection suits against wireless providers in state courts.
Therefore, the prohibition in section 332(c)(3)(A) with regard to
wireless providers is limited and not absolute.

V. The LSGAC believes that the issue presented in the Petition for

Declaratory Ruling is important to state and local government. However,
due to the scarcity of comments filed with regard to this matter, it is
not clear to the LSGAC whether state and local governments are aware of,
or educated about this matter.

RECOMMENDATIONS:

For the reasons discussed above, the LSGAC recommends that the
Commission

take the following actions:

\(1\) As a matter of process, associations representing local and state

government interests must be made fully aware of this matter and the

potential consequences of a ruling to local and state government.

Accordingly, outreach to these groups is appropriate and necessary.

\(2\) Take no preemptive action in issuing a Declaratory Ruling as
section

332(C)(3)(A) of the Telecommunications Act does not preempt a state
court

from awarding damages for violations of state consumer protection laws.

Adopted by the LSGAC on October \_\_\_\_, 1999.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Kenneth S. Fellman

Chairman