City of Portland v. United States

Court: 9th Circuit
Case Number: 18-72689
Decision Date: August 12, 2020
Case Type: Telecommunications

In this case the Federal Communications Commission (“FCC”) largely prevailed over state and local governments by using its preemption authority under the Communications Act of 1934 to remove perceived barriers to deployment of broadband infrastructure. The Ninth Circuit turned away several challenges to two FCC Orders which had restricted how state/local governments managed their rights-of-way (“ROW”) when accessed by broadband service providers.

The FCC found that ROW fees must represent a reasonable approximation of costs involved, with only objectively reasonable costs included, and that the ROW fee could be no higher than fees charged to similarly situated competitors in similar situations. In addition, the agency created a safe-harbor; below which the fees were deemed to be reasonable—$500 for an application fee and recurring fees less than $270 per year.