Cities Ask High Court for ROW Ruling


Three Western cities have asked the U.S. Supreme Court to overturn a 9th Circuit Court of Appeals ruling that they believe all but precludes them from managing rights-of-way on local streets.

The suit — which began in U.S. District Court for Western Washington — is broad enough to pre-empt every regulatory condition attempted by cities, according to a "friend of the court" brief filed earlier in the proceedings by cities that support the appellants. The municipalities argue that they are trying to protect street integrity and traffic flow in an era of multiple telecommunications installations.

The writ, filed in October, is being pursued by the Washington cities of Tacoma, Des Moines and Auburn in a battle they initiated against Qwest Communications International Inc. in 1998.

It's the latest of many challenges telecommunications providers have waged against cities over permit processing fees, documentation demands and other processes that vendors argue violate Sections 253 (a) and (c) of the U.S. Telecommunications Act.

Washington public-utilities policy mandates that franchised utilities must pay to relocate their plant in case of road work. As a result, cities sought franchises from companies, including Qwest. But the utility told cities it would not relocate its plant — or pay to do so —when cities do road work.

Qwest cited tariff agreements dating back to 1967, which said customers and cities are responsible for relocation payments.

According to court documents, the dispute resulted in one instance in which a telephone pole ended up in the middle of a widened street.

Initially, 18 cities sued the telco. A federal judge ruled for the cities on a summary judgment motion.

But the ruling addressed so many points of telecommunications regulatory policy that distressed both parties, both the cities and Qwest appealed to the California-based 9th Circuit.

There, the Washington cities were supported in their fight by the city and county of San Francisco and 31 other California cities and counties, as well as governments from Montana, Oregon and the National Association of Telecommunications Officers and Advisers.

The cities believe the lower court misinterpreted the relationship between the two sections of the act. Section 253 both codifies the authority of cities to manage their own rights-of-way and bars local requirements that constitute an effective prohibition to competitors.

But the Washington court faulted the cities' detailed application forms, as well as their requiring the submission of facilities maps, documentation of licenses, application fees of $2,500 to $5,000 and public hearings. On appeal, the cities argued the court "has mistaken that inconvenience or cost is a prohibition."

Since the case was decided via summary judgment, there was never any argument on whether the local ordinances could be applied without offending the act, they added.

But the 9th Circuit upheld the lower court and rebuffed an appeal by governments throughout its jurisdiction to rehear the case.

The 9th Circuit decision is at odds with the 6th U.S. Circuit Court of Appeals in its ruling in a case involving Dearborn, Mich., and competitive local-exchange carrier TCG Detroit.

Last year, the 6th Circuit court upheld the city's demand for facility maps and a $50,000 one-time payment.

"This will be our first shot at clarifying 253 (a)" by the U.S. Supreme Court, said Tim Lay of the law firm Miller, Canfield, representing the cities.

Qwest has until Nov. 8 to reply to the cities' appeal. It is unlikely the court will decide whether or not to hear the case until next year.