City of Portland, Oregon, et al. v. Federal Communications Commission, et al.

The Ninth Circuit upheld a Federal Communications Commission (FCC) Declaratory Ruling that construed the phrase “effect of prohibiting” in 47 U.S.C. §253(a) and §332(c)(7)(B) to preempt any state or local requirement preventing a telecommunications or personal wireless service provider from offering any “covered service [the] provider wishes to provide” using any capability or performance goals “it wishes to employ.” 33 FCC Rcd. 9088, ¶37 n.87 (2018). The decision is inconsistent with multiple circuit courts, incorrectly construed the statute to have no “limiting standard,” AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366 (1999), and misapplied National Cable & Telecomms. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005). The FCC applied its new standard to prohibit local governments from charging above-cost rental fees for commercial network installations in municipal rights-ofway and on all municipal facilities thereon. In doing so, it emptied of meaning Section 253(c)’s safe harbor for “fair and reasonable compensation,” in conflict with the uniform view of other circuits; and it denied localities’ proprietary interests in rights-of-way and municipal property thereon, in conflict with this and other courts’ precedent. The questions presented are:

1. Did the court of appeals err in upholding the FCC’s interpretation of “effect of prohibiting” in light of its plain meaning, lack of a limiting standard, and Brand X?

2. Did the divided court of appeals err in affirming the FCC’s interpretation of Section 253 to mandate access, at cost, to public property for private commercial use?