51 Federal Communications Law Journal 303 (1999)
With the passage of the Telecommunications Act of 1996, Congress revamped federal universal service policy by requiring that universal service support be explicit. The Act also provides that states can supplement federal universal service support with state universal service support. However, under section 254(f) of the Act, state programs must not be "inconsistent with" the FCC’s rules for implementing the Federal Plan. Section 254(f) provides for express preemption of state universal service plans but uses FCC rules as a measure for determining when preemption is required. As a result, the case law governing express preemption by Congress is in and of itself an insufficient guide for determining the scope of the section 254(f) preemption power. To interpret section 254(f), case law governing preemption by the FCC of state law must also be incorporated. Thus, a three-pronged test is required to determine whether a state universal service plan is preempted by section 254(f). This test should provide a framework for determining whether state law is preempted by any section of the Communications Act of 1934.
Trinchero, Mark P. and Smith, Holly Rachel
"Federal Preemption of State Universal Service Regulations Under the Telecommunications Act of 1996,"
Federal Communications Law Journal: Vol. 51
, Article 3.
Available at: http://www.repository.law.indiana.edu/fclj/vol51/iss2/3