CTIA, Carriers No Longer Seek Broad State Preemption
Wireless carriers have changed their Hill strategy on federal preemption of state controls. In 2006, carriers got then-Senate Commerce Committee Chmn. Stevens (R-Alaska) to fit telecom legislation with terms sharply curbing state control on wireless service (CD June 20 p3). The bill didn’t pass. This year, CTIA and its members will seek interim gains as different bills progress, sources said. And CTIA Pres. Steve Largent will sit with NARUC members at coming meetings in D.C. to talk about state regulation of wireless.
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“The political stars have realigned,” a wireless industry source said: “We haven’t changed our goal or desire to move as much of our regulation as we can to what we call a national framework, but how we do that is going to have to change.” Last year’s preemption provision drew significant opposition from consumer groups, to which Democrats are seen as more responsive.
The source cited as an example of the new strategy making certain emergency alerts sent by carriers to subscribers don’t face inconsistent state rules. As an example of a specific preemption issue, if Rep. Markey (D- Mass.) pushes for pretexting legislation, carriers will try to use that bill as a means of obtaining uniformity in state pretexting laws, he said. “Instead of a broad sweeping bill that would do it all at once you'd expect to see us supporting more narrowly focused initiatives that would advance this but advance it in steps rather than giant leaps,” the source said.
“This is just a calculation of the current political reality,” a wireless carrier source said: “We tried for more last year, but it was a tough fight and it’s not going to happen in the new Congress.” Today’s wireless regulatory landscape emerged from the 1993 Omnibus Budget Reconciliation Act, which gave FCC power over rates and entry for wireless, but left states in charge of contract terms and conditions. On a parallel track, wireless carriers have pushing the FCC for an order establishing that early termination fees are part of rates and not subject to state oversight (CD June 14 p5).
Wash. regulator Philip Jones, chmn. of the NARUC Federal Legislative Task Force, isn’t surprised to see carriers change strategy, given the shift in Congressional control, he told us. “At the NARUC meeting in D.C. in a few weeks we are going to sit down with Mr. Largent and talk about some joint cooperative approaches where we can resolve some of these inconsistent state guidelines that appear to be burdensome to the carriers,” Jones said: “On the other hand, we feel quite strongly still that where state commissions decide to act to protect consumers, and we have a higher standard than the FCC does, we should be allowed to enforce rules at the state levels. CTIA and the wireless carriers, from what I can tell, are going to have a problem with that.”
State regulators view wireless carriers as opposing all state actions on wireless, Clark said: “They, from what we can tell, want us to give up our rulemaking authority to protect and ensure service quality and to give up any enforcement role. Let’s just wait to see what they [carriers] do.”
NARUC Gen. Counsel Brad Ramsay said Wed. he’s unsurprised carriers are adopting a new strategy. “There is such a thing as asking for too much and I think that is the lesson for CTIA from last year,” he said: “The legislation they put forward was so extreme that it was difficult to garner any significant support. I'm not surprised they would retreat from that proposal.”
Carriers always cite confusion flowing from 51 different sets of rules, Ramsay said. “There aren’t 51 different ways that the states do anything,” he said: “There are only a limited array of viable options for handling any specific problem. With very few exceptions, that argument has no basis in reality and the industry knows that.”
In most cases, like protecting CPNI, for which there’s a federal standard, state regulators do impose additional rules, but only in reaction to problems their states’ residents face, Ramsay added. “States don’t look for things to regulate. They have enough to do. They do react to established abuses. The typical cycle when a new abuse arises: one or two states will proactively handle the problem; if the approach is effective, other states will copy it, and eventually Congress or the FCC will adopt a federal rule and that will be a floor. After federal action, in some states there may be continue to be abuses where constituents are vocal and complain the rules aren’t protecting them. That’s when state commissions will open a proceeding, create a factual record, and determine if the situation warrants additional protections.”