FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 10/23/98 

 THOMAS K. KAHN 

 CLERK

*

 Honorable William Stafford, Senior U.S. District Judge for the Northern District of

Florida, sitting by designation.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 97-9174 _______________ D. C. Docket No. 1:92-CV-658-ODE

R. MAYER OF ATLANTA, INC., 

TONY N. UPCHURCH, d.b.a. 

Chuck’s Truck, et al.,

Plaintiffs-Appellants,

versus

CITY OF ATLANTA, Georgia,

ELDRIN BELL, Individually and in

his official capacity as Director

of Public Safety for the City of

Atlanta, et al.,

Defendants-Appellees.

______________________________

Appeal from the United States District Court

for the Northern District of Georgia

______________________________ (October 23, 1998)

Before EDMONDSON and BIRCH, Circuit Judges, and STAFFORD*

, District Judge.

BIRCH, Circuit Judge:

In this appeal, we determine, as a matter of first impression,

whether the Interstate Commerce Act ("ICA") preempts a
2

municipal ordinance regulating the provision of consensual towing

services. On summary judgment, the district court ruled that,

because consensual towing services do not fall within the scope

of the ICA’s preemption provision, the municipal ordinance is

valid. For the reasons set forth below, we conclude that the ICA

expressly preempts municipal ordinances that regulate

consensual towing, and that the ICA does not exempt municipal

ordinances that address safety and insurance requirements. We

therefore vacate the district court's order and remand for further

proceedings.
1

 In 1995, the City Council made minor stylistic alterations to, and renumbered the code

section of, the ordinance at issue in this case. R3-54 Exs. A & B. Although the conduct

underlying the Towing Companies' claims occurred prior to the renumbering of the code

sections, we will refer to the current section of the code in order to minimize confusion.

3

I. BACKGROUND

Appellants (collectively, the "Towing Companies") are the

owners and operators of five towing and recovery companies

located outside the municipal boundaries of the City of Atlanta. The

Towing Companies provide towing services within the Atlanta

municipal limits.

In 1977, the Atlanta City Council adopted several ordinances

governing the provision of towing services within city limits. One

ordinance in particular makes it unlawful for "any person . . . to use

or operate upon any of the streets of the city a wrecker . . . without

having obtained a license granted by the mayor as provided in this

section." City of Atlanta Code of Ordinances § 162-223(a).1

 In order

to obtain a license from the mayor, an applicant must provide: (a) his

name and address; (b) his place of business; (c) the nature and

character of his business; (d) the names of his partners, if any; (e)
4

the names of all officers, if the applicant is a corporation; (f) a list of

the charges to be imposed for the towing services to be provided by

the applicant; (g) a description of the type and amount of insurance

held by the applicant; and (h) such other information as required by

the police or the license review board. Id. § 162-223(b). The same

ordinance also makes it unlawful for "any person . . . to use or to

operate upon any of the streets of the city any wrecker without

having first filed a registration of all these vehicles with the

department of police." Id. § 162-223(c). In order to be registered

with the police, an applicant must provide: (a) the make, model and

manufacturer's number of the towing vehicle; (b) the date the vehicle

was put into use as a wrecker; (c) the driver's license numbers of

those who will operate the vehicle; (d) the names of insurance

companies providing liability coverage for the vehicle; (e) the permit

number of each person who will operate the vehicle; and (f) such

other information that may be required by the mayor or the mayor's

designee. Id.
2 "Nonconsensual" towing services occur when law enforcement or other local

authorities determine that a vehicle must be towed and the owner of the vehicle is not afforded

the opportunity to request towing services from a specific company. An example of a

nonconsensual tow arises when an abandoned car is impounded by police.

5

Between October 26, 1990, and May 18, 1992, Atlanta law

enforcement officers issued citations to the Towing Companies

because they operated tow trucks within the city limits without

obtaining the permits required by § 126-223(a) and without

registering with the police as required by § 126-223(c). R3-54 Exs.

C, D, E, & F. All of the citations involved "consensual tows," which

occur when the owner of a vehicle expressly requests towing

services to be provided by a specific towing company and enters a

private contract with the towing company for the services.2

 All but

one of the citations resulted in convictions, requiring the Towing

Companies to pay $276 each in fines.

In March 1992, the Towing Companies initiated this action in

federal court, seeking declaratory and injunctive relief to bar further

enforcement of Atlanta's towing ordinances. The Towing
3

 As described below, this provision now is codified at 49 U.S.C. § 14501(c)(1).

6

Companies also claimed compensatory damages related to their

convictions. 

On August 23, 1994, Congress enacted the Federal Aviation

Administration Authorization Act of 1994 ("FAAA Act"), which

became codified as part of the ICA effective January 1, 1995. P.L.

No. 103-305, 108 Stat. 1569, 1607 (1994). Section 601 of the FAAA

Act amended the ICA to preempt a wide range of state and local

statutes and regulations governing intrastate motor carriage.

Section 601 created a "general rule" that:

a State, [or] a political subdivision of a State . . . may not

enact or enforce a law, regulation, or other provision

having the force and effect of law related to a price, route,

or service of any motor carrier . . . with respect to the

transportation of property.

49 U.S.C.A. § 11501(h) (1995).3

 The FAAA Act also created

exceptions to the general preemption rule to authorize state

regulations that, among other things, regulate safety, impose

highway route controls, limit the size and weight of a motor vehicle
7

or the hazardous nature of its cargo, and require mandatory levels

of insurance. 49 U.S.C.A. § 11501(h)(2) & (3) (1995). None of the

exceptions, however, concerned towing services.

On December 29, 1995, Congress passed the Interstate

Commerce Commission Termination Act ("ICCTA") of 1995, which

took effect on January 1, 1996. P.L. No. 104-88, 109 Stat. 803, 804.

Section 103 of the ICCTA recodified former § 11501(h) as 49 U.S.C.

§ 14501(c)(1) without altering the provision's "general rule"

preempting the state and local regulation of prices, routes, and

services provided by motor carriers that transport property. Id., 109

Stat. at 899. The ICCTA, however, added a new exception to the

general rule created by § 14501(c)(1):

[Section 14501(c)(1)] does not apply to the authority of a

State or a political subdivision of a State to enact or

enforce a law, regulation, or other provision relating to the

price of for-hire motor vehicle transportation by a tow

truck, if such transportation is performed without the prior

consent or authorization of the owner or operator of the

motor vehicle.

49 U.S.C. § 14501(c)(2)(C). 
4

 In their Complaint, the Towing Companies claimed that the towing ordinance (a)

violates the Commerce and Due Process Clauses of the United States Constitution, (b) is

preempted by state law, and (c) tortiously interfered with the Towing Companies' contracts. The

Towing Companies raised their federal preemption claim in the context of the parties’ crossmotions for summary judgment. In addition to the dismissal of their federal preemption claim,

the Towing Companies also appeal the dismissal of their Commerce Clause and due process

claims. Because we find the federal preemption claim to be dispositive, we need not consider

the Commerce Clause and due process claims raised on appeal.

8

Relying upon these additions to the ICA’s preemption provision,

the Towing Companies argued that, although municipalities validly

may regulate the prices charged for "nonconsensual" towing

services, the regulation of consensual towing services is expressly

preempted by § 14501(c)(2)C). The district court rejected this

argument, concluding that Atlanta’s towing ordinance passes muster

under the Supremacy Clause. The Towing Companies appeal this

ruling.4

II. DISCUSSION

When reviewing a district court's analysis of a claim that federal

law preempts state law, we apply the same legal standards that the

district court applied in its order awarding summary judgment. Lewis
9

v. Brunswick Corp., 107 F.3d 1494, 1498 (11th Cir.), cert. granted,

--- U.S. ---, 118 S. Ct. 439, 139 L. Ed. 2d 337 (1997), cert.

dismissed, --- U.S. ---, 118 S. Ct. 1793, 140 L. Ed. 2d 933 (1998).

We therefore review the district court's decision de novo. Id.

A. PREEMPTION PRINCIPLES

The Supremacy Clause of the United States Constitution

provides that the laws of the United States “shall be the supreme

Law of the Land; ... any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.

Thus, state law that conflicts with federal law is “without effect.”

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608,

2617 (1992). Although at issue here is the validity of a municipal

ordinance, rather than a state statute, "for the purposes of the

Supremacy Clause, the constitutionality of local ordinances is

analyzed in the same way as that of statewide laws." Wisconsin

Pub. Intervenor v. Mortier, 501 U.S. 597, 605, 111 S. Ct. 2476,
10

2482, 115 L. Ed. 2d 532 (1991) (quoting Hillsborough County v.

Automated Medical Lab., Inc., 471 U.S. 707, 712-14, 105 S. Ct.

2371, 2375, 85 L. Ed. 2d 714 (1985)). 

Statutes and regulations established under the historic police

powers of the states are not superseded by federal law unless

preemption is the clear and manifest purpose of Congress. Lewis,

107 F.3d at 1500. Whether a federal statute preempts state law is

“a question of congressional intent.” Irving v. Mazda Motor Corp.,

136 F.3d 764, 767 (11th Cir. 1998) (internal quotation marks

omitted).

Federal law preempts state and local laws in three distinct

ways: (1) "express preemption," in which Congress defines explicitly

the extent to which a federal statute preempts state law; (2) "field

preemption," in which state law is preempted because “Congress

has regulated a field so pervasively, or federal law touches on a field

implicating such a dominant federal interest, that an intent for federal

law to occupy the field exclusively may be inferred;” and (3) "conflict
11

preemption," in which state law “is preempted by implication

because state and federal law actually conflict, so that it is

impossible to comply with both, or state law stands as an obstacle

to the accomplishment and execution of the full purposes and

objectives of Congress." Lewis, 107 F.3d at 1500 (internal quotation

and citation omitted). 

Here, the Towing Companies limit their arguments to express

preemption, which is a wise choice. No comprehensive federal

regulatory scheme purports to regulate vehicle towing, and Atlanta's

towing ordinance does not conflict with, or stand as an obstacle to

the accomplishment and execution of, the full purposes and

objectives of Congress. We therefore need consider only whether

federal law expressly preempts the City's towing ordinance.

B. EXPRESS PREEMPTION UNDER 49 U.S.C. § 14501(c)(1)

Express preemptive language may be found within the statute

itself, in its legislative history, or in regulations promulgated pursuant
12

to the statute. Scurlock v. City of Lynn Haven, 858 F.2d 1521, 1523

(11th Cir. 1988). Because the fundamental question is one of

statutory intent, we begin our analysis with the language employed

by Congress and the assumption that the ordinary meaning of the

language accurately expresses the legislative purpose. Morales v.

Trans World Airlines, 504 U.S. 374, 383, 112 S. Ct. 2031, 2036

(1992). 

The preemption clause enacted in the ICCTA states:

General Rule.--Except as provided in paragraphs (2) and

(3), a State, [or a] political subdivision of a State, . . . may

not enact or enforce a law, regulation, or other provision

having the force and effect of law related to a price, route,

or service of any motor carrier . . . with respect to the

transportation of property.

49 U.S.C. § 14501(c)(1). A "motor carrier" is defined as "a person

providing motor vehicle transportation for compensation." 49

U.S.C.A. § 13102(12). Motor vehicle transportation by a tow truck

for the compensation of the tow truck company, which is at issue in

this case, places the towing companies within the definition of a
13

"motor carrier." Consequently, under the plain, ordinary meaning of

the terms used in § 14501(c)(1), the federal statute expressly

preempts state and municipal ordinances that regulate the prices,

routes, or services provided by towing companies. 

This conclusion is strengthened by Congress' addition of a

limited exemption to § 14501(c)(1)'s preemptive scope for

nonconsensual towing services. Section 14501(c)(2)(C) states that

section 14501(c)(1) does not apply to the authority of a state or a

political subdivision to enact or enforce an ordinance relating to the

price of towing services “if such transportation is performed without

the prior consent or authorization of the owner or operator of the

motor vehicle.” § 14501(c)(2)(C). If Congress had not intended for

§ 14501(c)(1) to preempt state and local regulation of towing

services generally, Congress would not have included an express

exemption that applies solely to the prices charged for

nonconsensual towing services. Cf. United States v. Smith, 499

U.S. 160, 167, 111 S. Ct. 1180, 1185 (1991) (“Where Congress
14

explicitly enumerates certain exceptions to a general prohibition,

additional exceptions are not to be implied, in the absence of

evidence of a contrary legislative intent.”) (internal quotation and

citation omitted). By including an express exemption for the

regulation of prices for nonconsensual towing services, Congress

has evinced its intent that all aspects of consensual towing services

remain subject to the general rule set forth in the preemption clause.

Defendants-Appellees (the “City Defendants”) argue that this

interpretation of Congress’ preemptive intent is inconsistent with 49

U.S.C. § 13506(b), which lists several narrowly defined exceptions

to the ICA’s general grant of jurisdiction to the Secretary of

Transportation and the Surface Transportation Board. Section

13506(b) provides that:

[e]xcept to the extent the Secretary or Board, as

applicable, finds it necessary to exercise jurisdiction to

carry out the transportation policy of section 13101,

neither the Secretary nor the Board has jurisdiction under

this part over–
15

(1) transportation provided entirely in a municipality . . .

[or]

(3) the emergency towing of an accidentally wrecked or

disabled motor vehicle.

§ 13506(b)(1) & (3). According to the City Defendants, the sections

quoted above limit the preemptive effect of § 14501(c)(1) to the

extent that Atlanta’s towing ordinance regulates transportation that

is (a) provided entirely within city limits or (b) related to the

emergency towing of disabled vehicles. 

Although several courts have adopted the City Defendants’

argument, these courts rendered their decisions prior to the effective

date of the ICCTA in 1996. See Interstate Towing Ass’n, Inc. v. City

of Cincinnati, 6 F.3d 1154, 1158 n.4 (6th Cir. 1993) (interpreting §

13506(b) and § 11501(h), which did not contain the exemption for

nonconsensual towing, to reflect an intent not to preempt local

towing ordinances); Giddens v. City of Shreveport, 901 F. Supp.

1170, 1183 (W.D. La. 1995) (same); 426 Bloomfield Ave. Corp. v.

City of Newark, 904 F. Supp. 364, 369-70 (D.N.J. 1995) (same).
16

Cases published after the effective date of the ICCTA have rejected

this argument by focusing attention upon the express reference to

nonconsensual towing services contained in the amended form of §

14501(c)(2)(C). See, e.g., Harris County Wrecker Owners for Equal

Opportunity v. City of Houston, 943 F. Supp. 711, 722 (S.D. Texas

1996) (“The addition of § 14501(c)(2)(C) confirms congressional

intent in § 14501(c)(1) to preempt state and local towing

regulations.”); Ace Auto Body & Towing, Ltd. v. City of New York,

No. 96-Civ.-6547(DLC), (S.D.N.Y. Oct. 28, 1997) (“There is little

doubt that Congress has expressly preempted the intrastate towing

industry from local regulation through Section 14501(c) of Title VI.”).

We agree with the reasoning of the Harris County and Ace Auto

Body courts in that the express reference to towing services in §

14501(c)(2)(C) provides conclusive evidence that Congress

intended to extend the general rule of preemption to those aspects

of the towing industry that are not listed within the exception.
17

Furthermore, we note that, although § 13506(b) restricts the

Secretary’s and the Board’s jurisdiction in several narrowly defined

contexts, § 13506(b) also permits the Secretary and the Board to

exercise jurisdiction when “necessary . . . to carry out the

transportation policy of [49 U.S.C. §] 13101.” § 13506(b). The

transportation policy of § 13101 is defined broadly to include the

regulation of transportation by motor carriers and the promotion of

“competitive and efficient transportation services.” § 13101(a)(2).

More specifically, the policy calls upon the federal government to,

among other things:

(a) encourage fair competition, and reasonable rates for

transportation by motor carriers of property;

(b) promote efficiency in the motor carrier transportation

system . . .;

(c) meet the needs of shippers, receivers, passengers, and

consumers; [and] 

(d) allow a variety of quality and price options to meet changing

market demands and the diverse requirements of the shipping

and traveling public.
18

§ 13101(a)(2)(A)-(D). One of the ways in which Congress has

undertaken to accomplish the policies and goals set forth in § 13101

is by deregulating certain components of the transportation industry,

as revealed by express preemption provisions such as §

14501(c)(1). In other words, §§ 14501(c)(1) & (2) reflect Congress’

determination that state and local regulation of the towing

industry–with the narrow exception of regulations for the price of

nonconsensual towing services–disturbs the development of

competitive and efficient transportation services. We therefore

conclude that enforcement of § 14501(c)(1) in the context of this

case does not contravene § 13506(b), because the exercise of

jurisdiction is necessary to accomplish the policy objectives set forth

in § 13101. 

Even if we assume that the simultaneous application of §§

14501(c)(1) and 13506(b) creates an apparent inconsistency, any

ambiguity regarding Congress’ intent is readily resolved by

examining the ICCTA’s legislative history. The House Report
19

accompanying the proposed version of § 14501(c)(2)(C) states that

the purpose behind the amendment is to:

provide[] a new exemption from the preemption of State

regulation of intrastate transportation relating to the price

of non-consensual tow truck services. This is only

intended to permit States or political subdivisions thereof

to set maximum prices for non-consensual tows, and is

not intended to permit re-regulation of any other aspect of

tow truck operations. 

H.R. Rep. No. 104-311, at 119-20 (1995) (emphasis added),

reprinted in 1996 U.S.C.C.A.N. 793, 831-32. Congress thus limited

the exception to include only those regulations that address the

prices of nonconsensual towing, while leaving undisturbed the

preemptive effect of the statute as it pertains to all other aspects of

the towing industry. As noted prior to the amendment’s passage,

“[t]he pending legislation would restore the local authority to engage

in regulating the prices charged by tow trucks in non-consensual

towing situations. Regulation of routes and services, as well as

regulation of consensual towing, would still be preempted.” 141

Cong. Rec. H15602 (1995) (statement of Rep. Rahall) (emphasis
5 Congress used identical language in a similar provision found in the Airline

Deregulation Act of 1978, now codified at 49 U.S.C. § 41713(b), and expressed an intent that §

14501(c)(1) and § 41713(b) “function in the exact same manner with respect to [their]

preemptive effects.” H.R. Conf. Rep. No. 103-677, at 85 (1994), reprinted in 1994 U.S.C.C.A.N.

1715, 1757. In Morales v. Trans World Airlines, Incorporated, 504 U.S. 374, 112 S. Ct. 2031

(1992), the Supreme Court held that the “related to” language contained in § 41713(b) results in

preemption of any state or local law that has a “connection with or reference to” airline rates,

routes, or services. 504 U.S. at 384, 112 S. Ct. at 2037 (applying 49 U.S.C. § 1305(a), the

precursor to § 41713(b)). Consequently, § 14501(c)(1) preempts the state or municipal

ordinance to the extent that the ordinance has a “connection with or reference to” the price,

routes, or provision of consensual towing services.

20

added). The legislative history thus reveals Congress’ intent to

preempt any State or local ordinance that regulates the provision of

consensual towing services.

For these reasons, we conclude that § 14501(c)(1) expressly

preempts municipal ordinances that are “related to” the price, route,

or provision of consensual towing services. Section 162-223(a)-(c)

of Atlanta’s Municipal Code is “related to”5

 the provision of

consensual towing services because the ordinance limits who is

permitted to provide the services and requires that individuals and

companies satisfy various criteria before they provide the services.

Section 162-223(a)-(c) therefore is preempted under § 14501(c)(1).
21

C. EXCEPTIONS TO 49 U.S.C. § 14501(c)(1)

The City Defendants argue that, even if §§ 162-223(a)-(c) are

preempted under § 14501(c)(1), the ordinances nonetheless are

valid under an exception designed to allow states to regulate motor

vehicle safety and to enact minimum insurance requirements.

Section 14501(c)(2)(A) excepts from the preemptive scope of §

14501(c)(1) “the safety regulatory authority of a State with respect

to motor vehicles” and “the authority of a State to regulate motor

carriers with regard to minimum amounts of financial responsibility

relating to insurance requirements and self-insurance authorization.”

§ 14501(c)(2)(A). The exception thus authorizes a “State” to enact

safety and insurance-related regulations, but is conspicuously silent

regarding the authority of a municipality or any other political

subdivision of a state to enact such regulations. The Act itself

defines the term "State" to "mean[] the 50 States of the United

States and the District of Columbia," and therefore provides no

justification for reading the term “State” to include its political
22

subdivisions. 49 U.S.C. § 13102(18). To support their argument,

the City Defendants rely on Harris County, in which the court

construed § 14501(c)(2)(A) to permit a municipality to enact safety

regulations if the state expressly has delegated its regulatory

authority to its political subdivisions. Harris County, 943 F. Supp. at

726-27; see also AJ’s Wrecker Serv., Inc. v. City of Dallas, Nos. Civ.

A. 3:97-CV-1311D, Civ. A. 3:97-CV-2398D, 1998 (N.D. Texas April

15, 1998) (construing § 14501(c)(2)(A) in the same manner as

Harris County).

We are unpersuaded by this argument for four reasons. First,

the argument ignores the presumption that, when Congress omits

certain language in a particular subsection of a statute and includes

the language in other subsections, the omission is intentional rather

than accidental. See BFP v. Resolution Trust Corp., 511 U.S. 531,

537, 114 S. Ct. 1757, 1761, 128 L. Ed. 2d 556 (1994) (“[I]t is

generally presumed that Congress acts intentionally and purposely

when it includes particular language in one section of a statute but
23

omits it in another.”) (internal quotation marks omitted). The statute

at issue here presents a particularly appropriate opportunity to apply

this interpretive rule, as § 14501 contains no fewer than seven

express references to the regulatory authority of the political

subdivisions of the states in its other subsections, §§ 14501(a),

14501(b), 14501(c)(1), 14501(c)(2)(C), 14501(c)(3)(A),

14501(c)(3)(B), and 14501(c)(3)(C), but omits any references to

political subdivisions in § 14501(c)(2)(A). In fact, § 14501(c)(2)(A)

is the only subsection of the statute that mentions the regulatory

authority of a state without also mentioning the regulatory authority

of the state’s political subdivisions. We find it unlikely that this

omission reflects a drafting error, because a similar preemption

provision contained in the Airline Deregulation Act, 49 U.S.C. §

41713(b)(4)(B)(I), contains the same omission. For these reasons,

we view Congress’ omission of a reference to a state’s political

subdivisions from § 14501(c)(2)(A) as a manifestation of Congress’
24

intent that municipal safety and insurance regulations are not

exempted from the preemptive scope of § 14501(c)(1).

Second, this interpretation is consistent with the policy

objectives underlying the ICCTA. As stated above, the ICCTA is the

product of Congress’ desire to foster increased competition in the

motor transportation industry. To achieve this end, Congress

identified a need to eliminate a tangled web of state and local

ordinances that regulated the transportation of property, as

evidenced in the conference report accompanying the ICCTA: 

[T]he conferees believe preemption legislation is in the

public interest as well as necessary to facilitate interstate

commerce. State economic regulation of motor carrier

operations causes significant inefficiencies, increased

costs, reduction of competition, inhibition of innovation

and technology and curtails the expansion of markets. .

. . The sheer diversity of these regulatory schemes is a

huge problem for national and regional carriers attempting

to conduct a standard way of doing business.

H.R. Conf. Rep. 103-677, at 87 (1994), reprinted in 1994

U.S.C.C.A.N. 1715, 1759. By withholding the authority to enact

safety and insurance regulations from political subdivisions,
6 For example, a tow truck providing consensual towing services from a location in

downtown Atlanta to a location in Northwest Georgia may pass through nearly a dozen political

subdivisions of the State of Georgia that, under the City Defendants’ reading of the statute,

would possess the authority to enact safety and insurance regulations for tow truck companies. 

The number of political subdivisions rises dramatically in situations where the towing services

originate in Atlanta and end in North Florida, as is the case for at least one of the Towing

Companies that instituted this action. The cost for a towing company to maintain compliance

with all these political subdivisions’ ordinances would add up quickly, resulting in the

“inefficiencies, increased costs, reduction of competition, inhibition of innovation and

technology” that Congress sought to eliminate by enacting the ICCTA. H.R. Conf. Rep. 103-

677, at 87 (1994), reprinted in 1994 U.S.C.C.A.N. 1715, 1759 In addition, if each political

subdivision required tow trucks to display some type of registration number or permit,

compliance with all of the ordinances might become a physical impossibility as the number of

permits outpaced the available space on the truck. By requiring that safety and insurance

ordinances must be enacted on a statewide basis, the costs associated with complying with the

ordinances are reduced dramatically, which is an outcome that is consistent with the policy

objectives of the ICCTA.

25

Congress ensured that counties and municipalities would not enact

differing (and perhaps inconsistent) sets of safety and insurance

ordinances. Stated differently, it is reasonable to assume that

Congress decided that safety and insurance ordinances must be

enacted on a statewide level, in order to minimize the disturbance to

the motor transportation industry that a patchwork of local

ordinances inevitably would create.6

Third, we are not persuaded by the City Defendants’ arguments

that the Supreme Court’s decision in Wisconsin Public Intervenor v.

Mortier, 501 U.S. 597, 111 S. Ct. 2476, 115 L. Ed. 2d 532 (1991),
26

compels a contrary conclusion. The respondent in Mortier argued

that, because the Federal Insecticide, Fungicide, and Rodenticide

Act (“FIFRA”), codified at 7 U.S.C. § 136 et seq., contains a

provision that expressly authorizes a “State” to regulate pesticides

under certain conditions but does not mention political subdivisions,

the provision preempts local regulation of pesticides. 501 U.S. at

606-07, 111 S. Ct. at 2482-83; see also 7 U.S.C. § 136v (FIFRA’s

preemption provision). The Mortier Court observed that, under

FIFRA, the term “State” is not “self-limiting” because “political

subdivisions are merely subordinate components” of the state itself.

501 U.S. at 612, 111 S. Ct. at 2485. Since “the exclusion of political

subdivisions cannot be inferred from the express authorization to the

‘State[s],’” the Court observed that “the more plausible reading of

FIFRA’s authorization to the States leaves the allocation of

regulatory authority to the ‘absolute discretion’ of the States

themselves, including the option of leaving local regulation of
27

pesticides in the hands of local authorities.” Id. at 608, 111 S. Ct. at

2483. 

Mortier, however, falls short of establishing a rule that the word

“state” must be interpreted to include political subdivisions in all

circumstances. Significantly, the provision interpreted in Mortier

includes no references to political subdivisions whatsoever, and

FIFRA as a whole contains only “scattered mention” of political

subdivisions in its other parts. See Mortier, 501 U.S. at 612, 111 S.

Ct. at 2485; 7 U.S.C. § 136v. Moreover, the Court found FIFRA’s

legislative history to be too “complex and ambiguous” to support a

contrary result. 501 U.S. at 612, 111 S. Ct. at 2485. Section 14501,

on the other hand, contains no fewer than seven subsections that

expressly preclude or authorize rulemaking by political subdivisions,

while the subsection at issue in this case conspicuously omits any

reference to political subdivisions. See United States v. Denver, 100

F.3d 1509, 1513 (10th Cir. 1996) (declining to interpret CERCLA’s

preemption clause to encompass political subdivisions despite
7 It is worth observing that the context in which the Mortier Court interpreted the

term “State” may have influenced the Court’s conclusion as well. In Mortier, the Court faced a

claim that the use of the word “State” without mentioning political subdivisions revealed

Congress’ “clear and manifest purpose” to preempt local regulation. In response, the Court held

that Congress’ silence concerning political subdivisions is not sufficient to satisfy this rigorous

standard. 501 U.S. at 608-09, 612, 111 S. Ct. at 2483-85. Section 14501(c)(1), on the other

hand, expressly preempts all state and local regulation of certain aspects of the motor

transportation industry, and the question we must answer is whether Congress’ silence in an

exception to this rule implies that political subdivisions are to be included within the exception. 

The Michigan Supreme Court addressed this distinction when construing an exception to the

Federal Railroad Safety Act’s preemption clause and concluded that “[j]ust as the statutory

silence in Mortier was insufficient to establish preemption in the first place, so the statutory

silence here is insufficient to overcome the preemption otherwise expressly mandated by the

statute.” Grand Trunk W. R.R. Co. v. City of Fenton, 482 N.W.2d 706, 709-10 (Mich. 1992).

28

Mortier when surrounding statutory language permits inference that

“[i]f Congress had wished to include local zoning ordinances within

the definition of “state law” it would surely have so stated”); see also

Ohio Mfr. Ass’n v. City of Akron, 801 F.2d 824, 829 (6th Cir. 1986)

(listing federal preemption statutes that include the term “political

subdivisions” and concluding that Congress “did not simply overlook

including political subdivisions” in the Occupational Safety Act’s

preemption provision). Furthermore, as we stated above, our

conclusion is consistent with the ICCTA’s legislative history.7

 Cf.

Denver, 100 F.3d at 1513 (“[w]e will not apply Mortier in this context

when to do so would produce a result so contrary to the overall
29

objectives of CERCLA as expressed consistently in the Act itself, as

well as its legislative history”). For these reasons, Mortier can be

distinguished on its facts, and its construction of the word “State”

need not govern our analysis.

Fourth, we are not persuaded by the Harris County court’s

observation that interpreting § 14501(c)(2)(A) in a way that preempts

municipal safety ordinances would create an irreconcilable conflict

with the preemption provisions contained in the Hazardous Materials

Transportation Authorization Act of 1994 (“HTMA Act”), codified at

49 U.S.C.A. § 5101 et seq. See 943 F. Supp. at 727. Specifically,

the HTMA Act permits a “State, political subdivision of a State, or

Indian tribe” to enact ordinances governing the routes used by

hazardous materials carriers so long as the ordinances are not

“inconsistent” with federal standards and laws governing hazardous

materials transportation. See Jersey Cent. Power & Light Co. v.

Township of Lacey, 772 F.2d 1103, 1113 (3d Cir. 1985) (holding that

municipal law is preempted by what is now codified as 49 U.S.C. §
8

 The scope of this exception to § 14501(c)(1)’s general preemption rule is very narrow

indeed, because the HTMA permits a municipality to regulate the routes used by hazardous

materials carriers only if the regulations are not “inconsistent” with existing federal regulations. 

A municipal routing regulation is “inconsistent” with federal regulations if it “prohibits or

otherwise affects transportation on routes or at locations” authorized by federal regulations. 

Jersey Cent. Power, 772 F.2d at 1113. 

30

5125 of the HTMA). It is possible, however, to read § 14501(c)(1)

and § 5125 in a way that gives effect to both statutes. Cf.

Blanchette v. Connecticut General Ins. Corp., 419 U.S. 102, 133, 95

S. Ct. 335, 353, 42 L. Ed. 2d 320 (1974) (two statutes should be

read in a manner that gives effect to both unless there exists a

“clearly expressed congressional intention to the contrary”) (internal

quotation and citation omitted). Specifically, § 14501(c)(1) states a

“general rule” regarding preemption, which implies that Congress left

the door open for any exceptions that are recognized in other parts

of the ICA. The HTMA’s preemption provision thus may be read as

a narrow exception to the general preemptive scope of § 14501(c)(1)

that applies to the routing of hazardous materials carriers.8

 This

reading comports with the interpretive rules set forth in the preceding

section, because even though Congress included the term “political
9

 The City Defendants argue that, if we conclude that any portion of the towing

ordinance is preempted, we should also conclude that these portions are severable from the

remaining ordinances that affect towing services. The Towing Companies, however, do not

challenge the validity of any ordinances except §§ 162-223(a)-(c), and the Atlanta Code by its

terms preserves those parts of its ordinances that are not expressly declared to be invalid by a

court of competent jurisdiction. City of Atlanta Code of Ordinances § 1-10. Consequently, we

need not address the severability of §§ 162-223(a)-(c) from any other parts of the Atlanta Code,

and we need not address the validity of any ordinances other than those expressly challenged by

the Towing Companies.

31

subdivisions” in the relevant portions of § 5125, the term is

conspicuously absent from other provisions that affect preemption

under the HTMA. See 49 U.S.C. § 5112(b) (authorizing states and

Indian tribes, but not political subdivisions, to designate highway

routes over which carriers may transport hazardous materials).

Consequently, we do not agree that our construction of §

14501(c)(1) creates an irreconcilable conflict with the preemptive

provisions of the HTMA.

For all these reasons, we conclude that §§ 162-223(a)-(c) do

not fall within the exceptions for safety and insurance regulations

contained in § 14501(c)(2)(A). The ordinances therefore are

expressly preempted by § 14501(c)(1).9
32

III. CONCLUSION

For the foregoing reasons, we conclude that §§162-223(a)-(c)

of the Atlanta Code of Ordinances are preempted by 49 U.S.C. §

14501(c)(1) and are therefore unenforceable. We therefore

VACATE the district judge's entry of summary judgment in favor of

the City Defendants with respect to this issue, and REMAND the

case to the district court for further proceedings consistent with this

opinion.