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541 U.S. ____ (2004)

SUPREME COURT OF THE UNITED STATES

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Nos. 02—1238, 02—1386, and 02—1405

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 Court’s 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 Court’s 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.