|NIXON V. MISSOURI MUNICIPAL LEAGUE (02-1238) 541 U.S. 125 (2004)
299 F.3d 949, reversed.
[ Souter ]
[ Scalia ]
[ Stevens ]
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[March 24, 2004]
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
I agree with much of the Courts analysis in Parts II and III of its opinion, which demonstrates that reading any entity in 47 U.S.C. § 253(a) to include political subdivisions of States would have several unhappy consequences. I do not think, however, that the avoidance of unhappy consequences is adequate basis for interpreting a text. Cf. ante, at 13 (The municipal respondents position holds sufficient promise of futility and uncertainty to keep us from accepting it). I would instead reverse the Court of Appeals on the ground discussed in Part IV of the Courts opinion: Section 253(a) simply does not provide the clear statement which would be required by Gregory v. Ashcroft, 501 U.S. 452 (1991), for a statute to limit the power of States to restrict the delivery of telecommunications services by their political subdivisions.
I would not address the additional question whether the statute affects the power of . . . localities to restrict their own (or their political inferiors) delivery of telecommunications services, ante, at 2 (emphasis added), an issue considered and apparently answered negatively by the Court. That question is neither presented by this litigation nor contained within the question on which we granted certiorari.