DOJ Defends Constitutionality of Communications, Fairness Acts

DOJ urged a district court to reject constitutional challenges to Section 1510(c)(1) of the 2018 Wireless Telecommunications Tax and Fee Collection Fairness Act and Sections 254(f) and 254(i) of the Communications Act of 1934. The Kentucky 911 Service Board claimed those sections violate the 10th Amendment, in litigation with CTIA at U.S. District Court for Eastern Kentucky (see 2309250040 and 2309210018). "Congress is not commandeering the states; rather, it is merely restricting state and local regulation in the area of telecommunications, which falls comfortably within Congress’s powers under the Commerce Clause,” wrote DOJ, intervening Monday in case 3:2020-cv-00043. None of the disputed sections requires states to administer a federal program, it said. But the court needn’t reach the merits because Kentucky lacks standing, DOJ said. "Defendants did not meet their burden of identifying either a 'contemporary' or 'substantial' 'likelihood of future enforcement' of Sections 254(f) and 254(i),” said the department. "Defendants failed to meet their burden of showing that there is a 'case' or 'controversy' regarding either Section as required for Article III standing, which renders Defendants’ challenges to Sections 254(f) and 254(i) purely academic.”