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Ms. Coralie A. Wilson January 10, 2003 Page 5 FCC's designation of cable modem services as interstate information services is • federal law and binding upon all persons and entities to the same extent as a congressional statute.'. Because applicable federal law provides that cable modem services are not "cable services" under the Communications Act, the assessment of franchise fees on cable modem service revenues is expressly prohibited. Section 622(b) of the Communications Act expressly provides that "the franchise fee paid by a cable operator with respect to any cable system shall not exceed 5 percent of such cable operator's gross revenues derived ... from the operation of the cable system to provide cable services."8 Congress' intent in including the last four words of this statute is clear and unequivocal: to clarify that "franchising authorities may collect franchise fees under Section 622 ... solely on the basis of - revenues derived by a cable operator from the provision. of cable service.s9 In calculation of gross revenues from which the franchise fee ceiling is determined."); id. at ¶¶ 106- 07 (considering how. the past collection of franchise fees prior to the Declaratorv Rulino must be resolved). See 47 U.S.C. § 151 (authorizing the FCC to "execute and enforce the Communications Act); Schweiker v. Grav Panthers, 453 U.S. 34, 44 (1981) (agency regulations are entitled to "legislative effect°); Singer, SUTHERLAND STATUTORY CONSTRUCTION, vol. 3 § 65.5 p.412 (6th ed. 2001) ("Legislative rules and regulations promulgated by administrative bodies under proper statutory authority are usually given the force and effect of statutory law."); 15 Am. Jur. 2d CONSTITUTIONAL LAW § 54 (in the case of a conflict between the regulations of a state body and the conflicting regulations of a federal agency or commission, "the former must yield to the latter, since the term 'laws of the United States,' as used in the supremacy clause, encompasses both federal statutes and statutorily authorized federal agency regulations."). We note that the Commission, in comments filed with the FCC, has questioned whether the FCC was acting within proper regulatory authority in designating cable modem services as interstate information services.. See Appropriate Regulatory Treatment for Broadband Access to the Internet. over .Cable Facilities, CS Docket No. 02-52, Initial Comments of Metropolitan Government of the City of Nashville et al. (filed June 17, 2002). However, that the FCC's decision was fully within its regulatory authority is conclusively confirmed by the language of the Communications Act and the United State Supreme Court decision in Nat'I Cable & Telecomm. Assoc. v. Gulf Power Co., 534 U.S. 327, 338-9 (2002), where the Supreme Court determined that the classification of cable modem service was precisely the type of matter that Congress intended the FCC to decide. See also Declaratorv Ruling at ¶ 59. In any event, in the absence of any ruling by a court of competent jurisdiction that the FCC's legislative rule is invalid, the Franchisee, the Commission, and its member cities are duty .bound to adhere to it. See. e.o., 15 Am. Jur. 2d CONSTITUTIONAL LAw § 53 (2d Ed. 1998) (federal laws are binding upon the authorities of each states "in the same manner as if they were actually embodied in the Federal Constitution" and "state laws are always subordinate, and federal laws, enacted pursuant to the .Constitution, are always paramount."). e 47 U.S.C. § 542(b) (emphasis added). s H.R. Rep. No. 104-204, Part 1, 104th Cong., 1St Sess. 93 (emphasis added).