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                                                                                                                                                     INTRODUCTION

Amici curiae the City and County of San Francisco; 31 additional California cities; Tuscon, Arizona; Billings, Montana; Portland and Springfield, Oregon; Spokane and Vancouver, Washington; the Marin Telecommunications Agency, the National Association of Telecommunications Officers and Advisors, the Oregon League of Cities and the National League of Cities (“Amici”) urge the Court to grant the petition for rehearing and suggestion for rehearing en banc filed by the Cities of Auburn, Des Moines, and Tacoma, Washington (“Cities”) on May 8, 2001.  The panel’s finding in its April 24, 2001 opinion (“Opinion”) that the Cities’ ordinances are preempted by §253 of the Telecommunications Act of 1996  (“the Act”) should be reheard because it conflicts with Supreme Court and Ninth Circuit precedents, other circuit court holdings, and the intent of Congress.

First, the Opinion should not have reached the federal preemption claim because it had already disposed of the controversy on state law grounds.  Second, the Opinion should have applied a higher burden of persuasion to this facial preemption challenge and should have applied the Supreme Court’s presumption against preemption.  Third, the Opinion’s interpretation of the term “prohibition” as used in §253(a) was too inclusive and its interpretation of right-of-way management authority reserved to local governments under §253(c) was too narrow.

The Opinion can be read to preempt virtually every regulatory condition imposed by cities on use of streets by telecommunications providers.  It threatens thousands of local governments who daily balance the Act’s policy favoring competition in the telecommunications industry with other interests, such as protecting public assets from damage and preserving the safety and mobility of the traveling public.   The Opinion disregards Congressional intent to retain local authority to balance these interests.  Rehearing is essential to resolve the conflicts between the Opinion, Supreme Court and Ninth Circuit precedents and the intent of Congress.  Because the Opinion addresses a question of exceptional importance, Amici suggest rehearing en banc.

                                                                                                                                                               ARGUMENT

I.                   THE opinion ERRED IN FINDING THAT §253  OF THE ACT PREEMPTS THE CITIES’ ORDINANCES.

A.                 THE OPINION SHOULD NOT HAVE REACHED THE ISSUE OF FEDERAL PREEMPTION.

In Part II(B), the Opinion concludes that Washington law preempts the Cities’ requirements that defendant-appellant Qwest, Corp.(“Qwest”) obtain a franchise to maintain wireline facilities.  Opinion at 5166.  Because of this holding, the panel should not have decided the question of federal preemption.

          The Supremacy Clause of the United States Constitution (Art. VI, cl.2)  invalidates state and local laws that “interfere with, or are contrary to,” federal law.  Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985)(citation omitted) .  A court should not decide a constitutional issue unless it is necessary to dispose of the matter before it.  Harmon v. Brucker, 355 U.S. 579, 581 (1958) ; Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) .

           Where another incumbent carrier challenged a local ordinance, the Fourth Circuit held that the district court committed reversible error by deciding the question of preemption under §253  where it could dispose of the case based on state law claims.  Bell Atl. Md. v. Prince George’s County, 212 F.3d 863, 865 (4^th Cir. 2000) .  The Opinion’s conclusion that the Cities’ ordinances are invalid under state law disposed of this case.  The Opinion should not have gone further.

           In the alternative, if the panel’s consideration of the Supremacy Clause question is solely directed at wireless facilities, the discussion is equally erroneous.  Opinion at 5167.  Qwest’s counterclaim did not even allege that Qwest owns wireless facilities or that its wireless services are affected by the ordinances.  Even if it had so alleged, if the panel was uncertain about the effect of state law on the ordinances, it should have submitted the question to the Washington Supreme Court.  See Wash. Rules App. Proc., Rule 16.16(a)  (federal court may submit state law question to Washington Supreme Court); see, e.g., Broad v. Mannesmann Anlagenbau, 141 Wash.2d 670, 10 P.3d 371 (Wash. 2000) .

B.                 THE opinion FAILED TO APPLY THE PROPER STANDARD OF REVIEW.

First, as the Opinion notes, Qwest brought its counterclaim as a facial challenge under the Supremacy Clause.  A facial constitutional challenge can succeed only if the plaintiff demonstrates that the state law can never be applied consistent with federal law.  City of Chicago v. Morales, 527 U.S. 41, 55 & n.22 (Stevens, J., joined by Souter, and Ginsburg, J.J.), 527 U.S. at 69-70 (Breyer, J., concurring) (1999) .  Where it is possible to apply state law consistent with federal law, a facial preemption challenge must fail.  See California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 588 (1987)  (where state law may be applied consistent with the federal law, facial preemption challenge fails); Chemical Specialities Mfrs. Ass’n, Inc. v. Allenby, 958 F.2d 941, 943 (9^th Cir. 1992)  (same).  Qwest did not prove that the ordinances could not be applied without offending the Act.

Second, where federal law is said to bar state or local action in an area of traditional state regulation, courts apply a presumption against preemption. Hillsborough  County, 471 U.S. at 715  (congressional intent to preempt “must be clear and manifest”).  Management of the public streets is an area of traditional state regulation.  Baxter-Wyckoff v. Seattle, 67 Wash.2d 555, 560, 408 P.2d 1012, 1016 (Wash. 1965) .  Even where a statute’s preemptive effect is explicit, courts must apply the presumption to limit the scope of preemption to that clearly intended by Congress. [1]  Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (citation omitted) ;  see also, City of Abilene  v. FCC, 164 F.3d. 49, 52 (D.C. Cir. 1999)  (§253(a)  does not compel intrusion into an area of traditional State sovereignty.)  While §253(a) preempts state or local laws that have the effect of prohibiting the provision of telecommunications services, §253(c)  saves regulations that involve management of the public rights-of-way.  Right-of-way management involves a broad range of activities and concerns.  See Section I.E.,infra .  Instead of applying the presumption against preemption, the Opinion gave §253(a) a broad reading and gave §253(c) a narrow reading, curtailing local government’s well-established authority over the public streets.  On this ground alone the Opinion requires rehearing. [2] 

C.                 THE OPINION ERRED IN FINDING THAT REGULATORY CONDITIONS ON USE OF THE PUBLIC RIGHTS-OF-WAY CONSTITUTE AN EFFECTIVE PROHIBITION UNDER §253(a).

The Opinion held that several requirements for franchise applicants have the effect of prohibiting the provision of telecommunications services within the meaning of §253(a) : 1) the detailed application forms; 2) the  submission of facility maps; 3) the documentation of licenses; 4) application fees in the amount of $2500 to $5000; and 5) participation in a public hearing.  The Opinion also found an effective prohibition where the Cities required franchise grantees to provide advance notice or seek approval before transferring a franchise.  The Opinion also found an effective prohibition where the Cities reserved authority to grant, deny or revoke applications and to impose civil or criminal penalties against a company failing to comply with the ordinances.[3]  Opinion at 5168-71.

The Opinion disposes of these requirements without any analysis of the term “prohibit.”  It suggests that any inconvenience or cost is a prohibition.  This is mistaken.  Since the term “prohibit” is not defined in the Act, it must be construed “in accordance with its ordinary and natural meaning.”  FDIC v. Meyer, 510 U.S. 471, 476 (1994) .  To “prohibit” is “to forbid by authority” or “to prevent from doing something.”  Webster’s New Collegiate Dictionary 940 (9^th ed. 1990) .  Thus, under this plain and ordinary meaning, a requirement cannot have the effect of prohibiting service unless it actually prevents the provision of service.  Under the plain language of §253(a) , none of the requirements rejected by the panel is a prohibition.[4]  

The legislative history reflects that Congress used the term consistently with its plain meaning and intended to preclude only true prohibitions.  In debates concerning §253(a), Senators feared parochial favoritism toward incumbent monopoly providers and sought only to preempt  policies that would preclude new entrants from competing against the incumbent.  “[A]n action by a State or a city which says only one telephone company can operate in a given field” should be preempted.  141 Cong. Record S8206-02, S8212 (daily ed. June 13, 1995) (statement of Sen. Gorton) ; see also, 141 Cong. Record S8305-02, S8306 (daily ed. June 14, 1995) (statement of Sen. Gorton) .  There is no evidence that the Cities’ ordinances have the effect of precluding new providers from competing against Qwest.

In its first interpretation of §253 , the Ninth Circuit construed §253(a)  narrowly, holding that “the Act was designed to prevent explicit prohibitions on entry by a utility into telecommunications . . . ."  Communications Telesystems Int’l v. California Pub. Util. Comm’n, 196 F.3d 1011, 1016 (9^th Cir. 1999) .  Supreme Court precedent also favors narrow construction of the term “prohibition.”  In considering another provision of the Act promoting competition (§251(d)(2) ), the Supreme Court held that conditions that increase costs or decrease service quality for a competitor do not unlawfully “impair” the ability to provide service.  AT&T v. Iowa Utils. Bd., 525 U.S. 366, 390 (1999) .  At worst, the allegedly infirm provisions of the Cities’ ordinances could increase Qwest’s costs to provide services.  If minor cost increases would not “impair” the provision of service, they cannot logically be construed to have the effect of “prohibiting” the provision of services.

The panel’s broad interpretation also conflicts with a Sixth Circuit decision.  Where a competitive local exchange carrier challenged a franchise requirement imposed by the City of Dearborn, Michigan, the Sixth Circuit held that a franchising process was not an effective prohibition.  Indeed, the Court described such an assertion as “sophistry.” TCG Detroit v. City of Dearborn, 206 F.3d 618, 624 (6^th Cir. 2000) .  Like the Cities’ ordinances, the Dearborn ordinance required applicants to submit facility maps and subjected violators to civil or criminal penalties.  Dearborn, MI, Ordinance No. 97-696 (February 17, 1997) .  In addition, Dearborn required TCG to make one-time payments exceeding $50,000 to obtain a franchise.  TCG Detroit, 206 F.3d at 621.  The Sixth Circuit upheld all of these requirements.

The Opinion also conflicts with decisions of the Federal Communications Commission (“FCC”).  In In re Classic Telephone, Inc. the FCC considered a factual record that reflected parochial favoritism; nonetheless, it limited its conclusion to the specific manner in which the cities had exercised their franchising authority.  11 F.C.C.R. 13,082 at ¶¶37, 46 (FCC October 1, 1996) .  The FCC concluded that §§253(b)  and 253(c)  “preserve the authority of States and localities to deny a franchise application until such time the applicant (sic) complies with these permitted legal requirements.” Id. at ¶ 28 (emphasis added).  The Cities’ reservation of discretion to deny a franchise application -- which they have never exercised – is not itself a prohibition. [5]

Where a provider mounted a facial attack on a municipal ordinance, the FCC concluded that those seeking preemption must “supply us with credible and probative evidence” that the challenged requirement has the effect of prohibiting service without being preserved by §253(b)  and/or §253(c) .  “We will exercise our authority only upon such fully developed factual records.”  In re TCI Cablevision of Oakland County, Inc., 12 F.C.C. R. 21,396 at ¶101 (FCC Sep. 19, 1997) .

In light of the precedents and legislative history, the Opinion is mistaken.[6]  Qwest did not meet its burden of demonstrating that the Cities’ regulatory requirements even impair their provision of service much less prohibit it.  As the incumbent local exchange carrier within the challenged jurisdictions, Qwest’s facilities are both ubiquitous and fully operational.  While the panel might consider the Cities’ requirements burdensome Congress did not intend to eliminate all regulatory burdens on telecommunications providers.

D.                THE OPINION MISCONSTRUED THE RELATIONSHIP BETWEEN §253(a) AND §253(c)

The Opinion rejected some provisions under §253(c) that were never identified as having the effect of prohibiting services under §253(a) (i.e. requiring a description of services from a franchise applicant, requiring applicants to install additional facilities for subsequent users).  Likewise, the panel rejected some provisions as prohibitions under §253(a)  without evaluating whether they constitute right-of-way management under §253(c)  (i.e. map, fee, and public hearing requirements; civil and criminal penalties).  Opinion at 5174-77.  These holdings reflect two misreadings of the statute.

First, a provision that is not a legitimate method of managing the public rights-of-way is not automatically invalid because §253(c) itself has no preemptive effect.  Rather, §253(c) is an explicit reservation of local authority.  Section 253(c) provides that “Nothing in this section shall affect the authority of a State or local government to manage the public rights-of-way. . . .”  As such, it is a limitation on federal preemption authority, not a limitation on local authority.[7]

Second, a provision that has been shown to have the effect of prohibiting telecommunications services is not necessarily invalid under the Act.  Rather, if the provision exercises local authority to manage the public rights-of-way, even a prohibitory measure is protected from preemption by the “safe harbor” of §253(c).  See CTI, 196 F.3d at 1017  (upholding explicit prohibition of services because regulation is saved by §253(b) ).

E.                 THE OPINION ERRED IN FINDING THAT VARIOUS PROVISIONS OF THE CITIES’ ORDINANCES DO NOT REFLECT THE CITIES’ RESERVED POWER TO MANAGE THE PUBLIC RIGHTS-OF-WAY.

Working with a meager factual record, the Opinion erroneously concluded that requiring franchise applicants to submit legal and financial qualifications and a description of services falls outside the protection of §253(c) .  The Opinion also held that requiring telecommunications companies to install excess capacity and retaining discretion to grant, deny, or revoke a franchise based on unnamed factors falls outside the right-of-way management activities protected by §253(c).  Opinion at 5173-74. 

Each of these requirements has a clear and legitimate purpose in local management of the public rights-of-way. [8]  To the extent that the opinion relies on district court decisions to the contrary, these decisions are mistaken.  To the extent that the Opinion reflects concern that local officials will exercise their discretion in a manner inconsistent with the requirements of the Act, it cannot be squared with the proper standard of review, California Coastal Comm. , 480 U.S. at 588, and with the presumption that local officials will act in a manner consistent with the public interest,United States v. Morgan, 313 U.S. 409, 421 (1941) 1).

Had the panel remanded the case for development of a full factual record, the validity of the Cities’ requirements under §253(c)  would have been established.  The Cities drafted the ordinances to help them cope with an influx of new and unfamiliar companies seeking to install facilities in their streets.  The public rights-of-way are a limited asset that contains essential facilities necessary to providing utility, storm drainage, sewer drainage, street-lighting, public transportation, and other essential public services.

Legal Qualifications:  Given the congestion of essential facilities and the risk of damage to those facilities, cities must limit access to the rights-of-way to companies with legal authority to provide services.  The most direct method to establish this status is to request a copy of the relevant state and/or federal license.  In TCG NY, Inc.  v. White Plains, the court upheld a requirement that the franchisee obtain all necessary licenses as “relat[ing] directly to the core of the City’s rights-of-way authority.”  125 F. Supp. 2d 81, 91-92 (S.D.N.Y. 2000) .

Financial assurances:  Accidents involving telecommunications facilities can disrupt the provision of other services, cause property damage and cause serious personal injuries.  To protect taxpayers from unrecovered damages, companies installing facilities in the public rights-of-way must have adequate financial ability to compensate parties who may be injured by their facilities.

Service Descriptions:  Cities must obtain a description of the services franchise applicants will provide because providers of different services are subject to different requirements under federal, state and local law.  For example, cable television operators are required to obtain a local franchise under Title VI of the Communications Act.  Telecommunications providers are regulated under Title II of the Communications Act.[9]  In addition, providers of different services may be subject to different state and local taxes.

Excess Capacity:  Repeated excavation in a very short time period hurts businesses along construction routes, traffic management and pavement quality.  Where a city knows that future applicants will seek to install facilities in a block, cities should be able to use their right-of-way management authority to minimize excavation by requiring later applicants to purchase facilities from earlier applicants.

          Discretion to Grant, Deny or Revoke:  Where franchise application procedures and franchise provisions reflect right-of-way management authority, the discretion to deny or revoke a franchise is merely a method to enforce legitimate regulations.  Under the applicable standards of review, until presented with credible evidence to suggest otherwise, the court must presume that local officials will exercise their discretion in a manner consistent with applicable state and federal law.  Because of the meager record, no evidence was offered in this case. 

                                                                                                                                                           CONCLUSION

Amici suggest that the panel grant rehearing or, in the alternative, that the court grant rehearing en banc.  Given the extremely meager factual record in this case, Amici urge the court to reject the facial challenge or remand the case for development of a record on whether any provision of the Cities’ ordinances actually has the effect of prohibiting services and whether any such provisions reflects legitimate right-of-way management.  At a minimum the panel should clarify the Opinion in the manner suggested by the Cities.

DATED:      May 31, 2001                   Respectfully submitted,

LOUISE H. RENNE

City Attorney

julia m.c. friedlander

                                                          william k. sanders

                                                                        christine e. ferrari

Deputy City Attorneys

By:                                                             

          julia m.c. friedlander

          Deputy City Attorney

Attorneys for Amici Curiae

CITY AND COUNTY OF SAN FRANCISCO, et al.

                                                                                                             STATEMENT OF RELATED CASES

There are no related cases pending in this Court.

                                                                                                                CERTIFICATE OF COMPLIANCE

I hereby certify that this brief has been prepared using proportionally double-spaced 14 point Times New Roman typeface.  According to the "Word Count" feature in my Microsoft Word for Windows software, this brief contains 3493 words up to and including the signature lines that follow the brief's conclusion.

I declare under penalty of perjury that this Certificate of Compliance is true and correct and that this declaration was executed on May 22, 2001.

LOUISE H. RENNE

City Attorney

julia m.c. friedlander

                                                          WILLIAM K. SANDERS

                                                                        CHRISTINE E. FERRARI

Deputy City Attorneys

By:                                                             

          julia m.c. friedlander

          Deputy City Attorney

Attorneys for Amici Curiae

CITY AND COUNTY OF SAN FRANCISCO, et al.