SCOTUS Denies Cities’ Cert. Petition in Internet Service Provider Right-of-Way Fee Case

Without explanation, the Supreme Court has denied the petitioners’ request for review of a Sixth Circuit decision ruling that state and local governments may not collect fees from cable service operators for their use of municipal right-of-way in order to provide non-cable services like broadband internet.

Tuesday’s decision comes after the parties engaged in merits briefing before the high court, with several cities on one side and the Federal Communications Commission (FCC) and intervenor the NCTA –The Internet & Television Association, on the other.

In part, the case concerns an FCC order governing franchising authority’s ability to regulate cable operators’ provision of non-cable services. In affirming the validity of the FCC’s order, the Sixth Circuit agreed that the City of Eugene, Ore.’s right-of-way fee, as applied to cable operators’ broadband Internet service, was preempted by the Communications Act.

The cities sought review with the Supreme Court, arguing that the court needed to take the case to resolve conflicts presented by decisions of the Sixth Circuit and the Oregon Supreme Court. In their reply brief, filed mid-January, the cities reiterated that granting certiorari would clarify Supreme Court preemption jurisprudence and resolve the conflicting analyses adopted by the federal appellate and state high courts.

They also argued that the decision to curtail state and local authorities’ ability to charge service providers “affects the competitive landscape in a critical sector of our economy, and if preempted, every cost about which NCTA complains represents a commensurate loss of revenue to state and local governments.”

For its part, the NCTA, the nation’s principal television trade group, responded that Supreme Court intervention was unnecessary because the decision below was correct, there was no conflict, the case is a “bad vehicle,” and there is no need to clarify the extent of preemption law.The cities are represented by  Spiegel & McDiarmid LLP, Best Best & Krieger LLP, and Kitch, Drutchas, Wagner, Valitutti & Sherbrook. The NCTA is represented by Jenner & Block LLP.