FCC Opposes Certiorari in City’s Broadband Provider Fee Case

The Federal Communications Commission (FCC) says that the Supreme Court need not disturb an appellate decision ruling against the City of Eugene, Oregon over its imposition of a seven percent fee on cable operators providing broadband Internet service that use municipal rights-of-way. Wednesday’s opposition says that the lower court correctly found that the Communications Act of 1934 squarely preempts Eugene’s attempt to assess fees.

The dispute partly stems from an FCC order governing franchising authority’s ability to regulate cable operators’ provision of non-cable services. In upholding the FCC’s order, the Sixth Circuit agreed that the City of Eugene’s rights-of-way fee, as applied to cable operators’ broadband Internet service, was inconsistent with the Communications Act and therefore expressly preempted.

As previously reported, the cities argued in favor of certiorari. Among other things, their petition said that the Supreme Court need review the case to resolve federalism issues. In particular, the cities contended that the decision unfairly buoys cable-only service operators over broadband Internet providers.

In this week’s response, the FCC said the appellate court’s decision is not in conflict with any Supreme Court, appeals court, or any state high court decision. “Further review is not warranted,” the agency reiterated several times.

The FCC also rebutted arguments that the court of appeals misapplied principles of preemption, specifically “implied obstacle preemption.” The agency argued that the court’s conclusion that Title VI of the Communications Act prohibits the city’s fees was grounded in sound analysis.

The FCC urged that the Sixth Circuit correctly decided that state and local franchising authorities may not “end-run” the Communication Act’s limitations “‘by using other governmental entities or other sources of authority to accomplish indirectly what franchising authorities are prohibited from doing directly.’”

The FCC is represented by its own counsel and the Office of the Solicitor General.