throbber
 No. 21-661
`In the Supreme Court of the United States
`
`
`
`CITY OF EUGENE, OREGON, ET AL., PETITIONERS
`v.
`FEDERAL COMMUNICATIONS COMMISSION, ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`
`
`
`BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION
`
`
`
` BRIAN H. FLETCHER
`Acting Solicitor General
`Counsel of Record
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`P. MICHELE ELLISON
`Acting General Counsel
`JACOB M. LEWIS
`Acting Deputy General
`Counsel
`MAUREEN K. FLOOD
`Counsel
`Federal Communications
`Commission
`Washington, D.C. 20554
`
`
`
`
`

`

`QUESTION PRESENTED
`Title VI of the Communications Act of 1934 (Commu-
`nications Act), as amended, 47 U.S.C. 521 et seq., gener-
`ally prohibits a cable operator from providing cable ser-
`vices over a cable system without obtaining a cable fran-
`chise from a franchising authority—typically a local or
`state government entity. 47 U.S.C. 541(b)(1). As condi-
`tions on the grant of a cable franchise, a franchising au-
`thority may require the cable operator to pay a franchise
`fee of up to five percent of its revenue from providing
`cable services; to reserve channel capacity for public, ed-
`ucational, or governmental use; and to provide free cable
`service for public buildings. Title VI states, however,
`that a franchising authority “may not regulate the ser-
`vices, facilities, and equipment provided by a cable op-
`erator except to the extent consistent with [Title VI],”
`47 U.S.C. 544(a), and it expressly preempts “any provi-
`sion of law of any State, political subdivision, or agency
`thereof, or franchising authority” that is “inconsistent
`with [the Communications Act],” 47 U.S.C. 556(c).
`The Federal Communications Commission (FCC) de-
`termined that a fee imposed by petitioner City of Eu-
`gene, Oregon, on cable operators’ use of rights-of-way to
`provide broadband Internet service is preempted be-
`cause it is inconsistent with 47 U.S.C. 544(b)(1). That
`provision states that a franchising authority, “in its re-
`quest for proposals for a franchise * * * , may not * * *
`establish requirements for video programming or other
`information services,” which include broadband Internet
`service. Ibid. The question presented is as follows:
`Whether the court of appeals properly upheld the
`FCC’s determination that Title VI preempts petitioner
`City of Eugene’s fee on cable operators’ use of rights-
`of-way to provide an information service.
`
`(I)
`
`

`

`TABLE OF CONTENTS
`
`Page
`Opinions below .............................................................................. 1
`Jurisdiction .................................................................................... 1
`Statement ...................................................................................... 1
`Argument ..................................................................................... 13
`Conclusion ................................................................................... 23
`
`TABLE OF AUTHORITIES
`
`
`
`Cases:
`ACLU v. FCC, 823 F.2d 1554 (D.C. Cir. 1987),
`cert. denied, 485 U.S. 959 (1988) ......................................... 4
`Alliance for Cmty. Media v. FCC,
`529 F.3d 763 (6th Cir. 2008),
`cert. denied, 557 U.S. 904 (2009) ................................. 2, 3, 7
`Capital Cities Cable, Inc. v. Crisp,
`467 U.S. 691 (1984)................................................................ 2
`Chamber of Commerce v. Whiting,
`563 U.S. 582 (2011).............................................................. 15
`Chevron U.S.A. Inc. v. Natural Res. Def. Council,
`Inc., 467 U.S. 837 (1984) ..................................................... 19
`City of Eugene v. Comcast of Or. II, Inc.,
`375 P.3d 446 (Or. 2016) ........................................... 20, 21, 22
`City of New York v. FCC,
`814 F.2d 720 (D.C. Cir. 1987),
`aff ’d, 486 U.S. 57 (1988) ........................................................ 3
`Cuomo v. Clearing House Ass’n,
`557 U.S. 519 (2009).............................................................. 19
`Entergy Corp. v. Riverkeeper, Inc.,
`556 U.S. 208 (2009).............................................................. 20
`Holder v. Martinez Gutierrez, 566 U.S. 583 (2012) ........... 20
`Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ...................... 19
`
`
`(III)
`
`

`

`IV
`
`Page
`
`Cases—Continued:
`Montgomery Cnty. v. FCC,
`863 F.3d 485 (6th Cir. 2017) ............................................. 4, 8
`Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. Cir. 2019) ... 6, 21, 22
`National Cable & Telecomms. Ass’n v. Brand X
`Internet Servs., 545 U.S. 967 (2005) .................................... 6
`Pennsylvania Dep’t of Corr. v. Yeskey,
`524 U.S. 206 (1998) ............................................................. 18
`Puerto Rico v. Franklin Cal. Tax-Free Trust,
`579 U.S. 115 (2016).............................................................. 15
`Smiley v. Citibank (S.D.), N.A., 517 U.S. 735 (1996) ........ 19
`Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) ......... 16
`United States v. Southwestern Cable Co.,
`392 U.S. 157 (1968)................................................................ 2
`
`Statutes:
`Cable Communications Policy Act of 1984,
`Pub. L. No. 98-549, sec. 2, §§ 601-639,
`98 Stat. 2780-2801 ................................................................. 2
`Communications Act of 1934:
`Tit. I, 47 U.S.C. 151 et seq. ............................................... 1
`47 U.S.C. 153(24) ..................................................... 5, 6
`47 U.S.C. 153(51) ......................................................... 6
`47 U.S.C. 153(53) ..................................................... 5, 6
`Tit. II, 47 U.S.C. 201 et seq. .............................................. 6
`Tit. VI, 47 U.S.C. 521 et seq. .................................. passim
`47 U.S.C. 522(5) ........................................................... 3
`47 U.S.C. 522(6) ........................................................... 3
`47 U.S.C. 522(7) ........................................................... 3
`47 U.S.C. 522(7)(C) .................................................. 7, 8
`47 U.S.C. 541 .................................................. 11, 16, 17
`47 U.S.C. 541(a) ......................................................... 22
`47 U.S.C. 541(a)(2) ..................................... 3, 14, 16, 17
`
`
`

`

`V
`
`Page
`Statutes—Continued:
`47 U.S.C. 541(a)(2)-(4) ............................................... 17
`47 U.S.C. 541(a)(3) ....................................................... 4
`47 U.S.C. 541(a)(4)(B) ................................................. 4
`47 U.S.C. 541(b) ................................................... 21, 22
`47 U.S.C. 541(b)(1) ........................................... 3, 14, 17
`47 U.S.C. 541(b)(3) ........................................... 6, 17, 20
`47 U.S.C. 541(b)(3)(A)(i)............................................ 20
`47 U.S.C. 541(b)(3)(B) ............................................... 20
`47 U.S.C. 542 .............................................................. 17
`47 U.S.C. 542(b) ........................................................... 4
`47 U.S.C. 542(g) ......................................................... 10
`47 U.S.C. 542(g)(1) ................................................. 4, 12
`47 U.S.C. 544 .............................................................. 17
`47 U.S.C. 544(a) ................................................ passim
`47 U.S.C. 544(b) ......................................... 4, 10, 17, 18
`47 U.S.C. 544(b)(1) ............................................ passim
`47 U.S.C. 544(f )(1) ....................................................... 5
`47 U.S.C. 544(h) ........................................................... 5
`47 U.S.C. 556(c) ................................................. passim
`47 U.S.C. 557(a) ........................................................... 5
`
`Miscellaneous:
`H.R. Rep. No. 934, 98th Cong., 2d. Sess. (1984) ................... 5
`Implementation of Section 621(a)(1) of the Cable
`Commc’ns Policy Act of 1984 as Amended by the
`Cable Television Consumer Prot. & Competition
`Act of 1992, In re:
`22 FCC Rcd 5101 (2007) ................................................... 7
`22 FCC Rcd 19,633 (2007) ................................................ 7
`30 FCC Rcd 810 (2015) ..................................................... 7
`34 FCC Rcd 6844 (2019) ................................................... 8
`
`
`
`

`

`In the Supreme Court of the United States
`
`
`
`No. 21-661
`CITY OF EUGENE, OREGON, ET AL., PETITIONERS
`v.
`FEDERAL COMMUNICATIONS COMMISSION, ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`
`
`
`BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION
`
`
`
`OPINIONS BELOW
`The opinion of the court of appeals (Pet. App.
`1a-26a) is reported at 998 F.3d 701. The report and
`order of the Federal Communications Commission
`(Pet. App. 27a-236a) is reported at 34 FCC Rcd 6844.
`JURISDICTION
`The judgment of the court of appeals was entered on
`May 26, 2021. A petition for rehearing was denied on
`August 3, 2021 (Pet. App. 237a-238a). The petition for
`a writ of certiorari was filed on November 1, 2021. The
`jurisdiction of this Court is invoked under 28 U.S.C.
`1254(1).
`
`STATEMENT
`1. a. Under the Communications Act of 1934 (Com-
`munications Act), as amended, 47 U.S.C. 151 et seq., the
`Federal Communications Commission (FCC or Com-
`
`(1)
`
`

`

`2
`
`mission) has long regulated the provision of cable ser-
`vices. See United States v. Southwestern Cable Co.,
`392 U.S. 157, 167-178 (1968). This Court has repeatedly
`upheld the FCC’s authority to regulate the cable me-
`dium, see ibid., including its authority to determine that
`federal law preempts certain state and local require-
`ments, see, e.g., Capital Cities Cable, Inc. v. Crisp,
`467 U.S. 691, 698-705 (1984).
`At the same time, local (and some state) government
`entities have long exerted partially overlapping author-
`ity over cable providers, including by determining
`whether and on what terms “to grant cable franchises
`to applicants in their communities.” Alliance for Cmty.
`Media v. FCC, 529 F.3d 763, 767 (6th Cir. 2008), cert.
`denied, 557 U.S. 904 (2009). “As part of th[e] negotia-
`tion process” over franchises, “cable operators fre-
`quently agreed to perform various activities on behalf
`of the public interest in exchange for a franchise.” Ibid.
`The “overlapping authority of the FCC and municipali-
`ties” gave rise to “ ‘regulatory uncertainty’ ” about their
`respective roles. Ibid. (citation omitted).
`To address that uncertainty, Congress enacted the
`Cable Communications Policy Act of 1984 (Cable Act),
`Pub. L. No. 98-549, sec. 2, §§ 601-639, 98 Stat. 2780-2801.
`The Cable Act amended the Communications Act by
`adding Title VI, 47 U.S.C. 521 et seq., in which Congress
`sought to “establish a national policy that clarified the
`current system of local, state and federal regulation of
`cable television.” Alliance for Cmty. Media, 529 F.3d
`at 768 (brackets and citation omitted). The Cable Act
`embodied a policy of “continu[ing] reliance on the local
`franchising process as the primary means of cable tele-
`vision regulation, while defining and limiting the author-
`ity that a franchising authority may exercise through the
`
`
`
`

`

`3
`
`franchise process.” Ibid. (citation omitted); see City of
`New York v. FCC, 814 F.2d 720, 723 (D.C. Cir. 1987) (ob-
`serving that the Cable Act struck a “balance” by “af-
`firming the FCC’s ‘exclusive jurisdiction over cable ser-
`vice’ ” while “ ‘preserving the critical role of municipal
`governments’ ” through “ ‘the franchise process’ ” (cita-
`tions omitted)), aff ’d, 486 U.S. 57 (1988).
`b. Under Title VI, in order to provide “cable service”
`in a given area, a “cable operator” generally must obtain
`a franchise from the area’s franchising authority, typi-
`cally a local or state government entity. 47 U.S.C.
`541(b)(1). For purposes of Title VI, a “ ‘cable operator’ ”
`is “any person or group of persons (A) who provides ca-
`ble service over a cable system and directly or through
`one or more affiliates owns a significant interest in such
`cable system, or (B) who otherwise controls or is re-
`sponsible for, through any arrangement, the manage-
`ment and operation of such a cable system.” 47 U.S.C.
`522(5). The term “ ‘cable service’ ” refers to “(A) the
`one-way transmission to subscribers of (i) video pro-
`gramming, or (ii) other programming service, and
`(B) subscriber interaction, if any, which is required for
`the selection or use of such video programming or other
`programming service.” 47 U.S.C. 522(6). Title VI fur-
`ther provides that a cable franchise “shall be construed
`to authorize the construction of a cable system over pub-
`lic rights-of-way, and through easements.” 47 U.S.C.
`541(a)(2); see 47 U.S.C. 522(7) (defining a “ ‘cable sys-
`tem,’ ” with certain exceptions, as “a facility, consisting
`of a set of closed transmission paths and associated sig-
`nal generation, reception, and control equipment that is
`designed to provide cable service which includes video
`programming and which is provided to multiple sub-
`scribers within a community”).
`
`
`
`

`

`4
`
`A franchising authority may condition the grant of a
`franchise on a cable operator’s provision of certain fa-
`cilities and services and its satisfaction of other require-
`ments. Title VI requires a franchising authority to en-
`sure that the cable operator satisfies certain criteria—
`for example, that “access to cable service is not denied
`to any group of potential residential cable subscribers
`because of the income of the residents of the local area.”
`47 U.S.C. 541(a)(3); see Pet. App. 8a. Title VI also ex-
`pressly authorizes, but does not require, franchising au-
`thorities to impose other specified requirements. A
`franchising authority may require a cable operator to
`pay a “franchise fee”—defined as “any tax, fee, or as-
`sessment of any kind imposed by a franchising author-
`ity or other governmental entity on a cable operator or
`cable subscriber, or both, solely because of their status
`as such.” 47 U.S.C. 542(g)(1). A franchise fee may not
`exceed five percent of a cable operator’s annual gross
`revenues from the provision of cable services. 47 U.S.C.
`542(b). Title VI also authorizes, but does not require,
`franchising authorities to subject cable operators to
`“noncash” obligations, Pet. App. 9a—such as require-
`ments that cable operators provide channel capacity for
`public, educational, and governmental use and that they
`provide free cable service for public buildings, see, e.g.,
`47 U.S.C. 541(a)(4)(B), 544(b); Pet. App. 4a, 9a.
`Franchising authorities “do not have unlimited dis-
`cretion in negotiating, granting, and denying fran-
`chises.” Montgomery Cnty. v. FCC, 863 F.3d 485, 487
`(6th Cir. 2017); see ACLU v. FCC, 823 F.2d 1554, 1559
`(D.C. Cir. 1987) (per curiam), cert. denied, 485 U.S. 959
`(1988). Title VI prohibits “[a]ny franchising authority”
`from “regulat[ing] the services, facilities, and equip-
`ment provided by a cable operator except to the extent
`
`
`
`

`

`5
`
`consistent with [Title VI],” and from “impos[ing] re-
`quirements regarding the provision or content of cable
`services, except as expressly provided in [Title VI].”
`47 U.S.C. 544(a) and (f )(1). And although Title VI au-
`thorizes a franchising authority, “in its request for pro-
`posals for a franchise,” to “establish requirements for
`facilities and equipment,” the franchising authority
`“may not * * * establish requirements for video pro-
`gramming or other information services,” apart from
`requiring certain notices to subscribers of channel-
`position changes. 47 U.S.C. 544(b)(1); see 47 U.S.C.
`544(h). Title VI also contains an express preemption
`provision, 47 U.S.C. 556(c), which states that “any pro-
`vision of law of any State, political subdivision, or
`agency thereof, or franchising authority, or any provi-
`sion of any franchise granted by such authority, which
`is inconsistent with this chapter shall be deemed to be
`preempted and superseded,” with an exception for fran-
`chises and laws that were in effect when Title VI was
`enacted in 1984. Ibid.; see 47 U.S.C. 557(a).
`c. Although Title VI requires a cable operator to ob-
`tain a cable franchise to provide cable service over a ca-
`ble system, the enacting Congress recognized that a ca-
`ble system may also be used to provide other, non-cable
`services. See, e.g., H.R. Rep. No. 934, 98th Cong., 2d
`Sess. 44 (1984) (“A facility would be a cable system if it
`were designed to include the provision of cable services
`* * * along with communications services other than ca-
`ble service.”). Non-cable services generally fall into one
`of two categories: “telecommunications service[s]” and
`“information service[s].” 47 U.S.C. 153(24) and (53). Ti-
`tle VI restricts franchising authorities’ ability to regu-
`late both types of services.
`
`
`
`

`

`6
`
`The Communications Act defines a “ ‘telecommunica-
`tions service’ ” as “the offering of telecommunications
`for a fee directly to the public * * * regardless of the
`facilities used.” 47 U.S.C. 153(53). “[T]elecommunica-
`tions services” are provided by “telecommunications
`carrier[s],” which are treated as “common carrier[s]”
`subject to the requirements of Title II of the Communi-
`cations Act, 47 U.S.C. 201 et seq. 47 U.S.C. 153(51). Ti-
`tle VI generally precludes a franchising authority from
`requiring, prohibiting, or restricting a cable operator’s
`provision of telecommunications services. See 47 U.S.C.
`541(b)(3).
`An “ ‘information service’ ” is “the offering of a capa-
`bility for generating, acquiring, storing, transforming,
`processing, retrieving, utilizing, or making available in-
`formation via telecommunications, and includes elec-
`tronic publishing.” 47 U.S.C. 153(24). Providers of in-
`formation services are not treated as common carriers
`and thus are not subject to Title II’s requirements. See
`National Cable & Telecomms. Ass’n v. Brand X Inter-
`net Servs., 545 U.S. 967, 976 (2005). The FCC currently
`classifies broadband Internet service as an information
`service. Mozilla Corp. v. FCC, 940 F.3d 1, 17 (D.C. Cir.
`2019) (per curiam); see id. at 18-35 (upholding that clas-
`sification). As noted above, Title VI generally prohibits
`a franchising authority from “establish[ing] require-
`ments for * * * information services” in requests for
`proposals for a cable franchise. 47 U.S.C. 544(b)(1); see
`p. 5, supra.
`2. This case concerns an FCC order issued in 2019—
`the latest in a series of orders in which the Commission
`addressed, inter alia, a franchising authority’s ability
`to regulate cable operators’ provision of non-cable ser-
`vices.
`
`
`
`

`

`7
`
`a. In 2007, the FCC issued an order designed to re-
`duce barriers to entry for new applicants (in particular,
`telephone companies) to obtain cable franchises. In re
`Implementation of Section 621(a)(1) of the Cable
`Commc’ns Policy Act of 1984 as Amended by the Cable
`Television Consumer Prot. & Competition Act of 1982,
`22 FCC Rcd 5101 (2007) (First Report and Order). As rel-
`evant here, the Commission determined in the First Re-
`port and Order that franchising authorities may not use
`their authority under Title VI to “regulate” a new entrant’s
`“entire network beyond the provision of cable services.”
`Id. at 5155. The Commission derived that prohibition—
`known as the “mixed-use” rule—from the Act’s defini-
`tion of “cable system.” Ibid. (capitalization omitted).
`That definition provides that the facility of a “common
`carrier” constitutes a cable system only “to the extent”
`that the facility distributes “video programming directly
`to subscribers.” 47 U.S.C. 522(7)(C). Petitions for review
`of the First Report and Order were consolidated in the
`Sixth Circuit, which denied the petitions. See Alliance for
`Cmty. Media, 529 F.3d at 772-787; Pet. App. 4a.
`While petitions for review of the First Report and Or-
`der were pending, the FCC issued another order, which
`in relevant part extended the mixed-use rule to incumbent
`cable operators. See In re Implementation of Section
`621(a)(1) of the Cable Commc’ns Policy Act of 1984 as
`Amended by the Cable Television Consumer Prot. & Com-
`petition Act of 1982, 22 FCC Rcd 19,633, 19,640-19,641
`(2007) (Second Report and Order). The Commission de-
`nied requests for reconsideration of that order in relevant
`part. See In re Implementation of Section 621(a)(1) of
`the Cable Commc’ns Policy Act as Amended by the Cable
`Television Consumer Prot. & Competition Act of 1982,
`30 FCC Rcd 810 (2015) (Reconsideration Order).
`
`
`
`

`

`8
`
`The Sixth Circuit vacated the Second Report and Or-
`der and the Reconsideration Order in relevant part.
`Montgomery Cnty., 863 F.3d at 492-493. The court con-
`cluded that the Commission had not identified a legal
`basis “for its application of the mixed-use rule to bar lo-
`cal franchising authorities from regulating the provi-
`sion of non-telecommunications services by incumbent
`cable providers.” Id. at 493. The court explained that
`the mixed-use rule was based on 47 U.S.C. 522(7)(C),
`which “applies only to Title II carriers” (i.e., common
`carriers), but that “many incumbent cable operators are
`not Title II carriers.” Montgomery Cnty., 863 F.3d at
`493. The court remanded to the FCC “to set forth a
`valid statutory basis” for applying its mixed-use rule to
`incumbent cable operators. Ibid.
`b. In 2019, on remand from the Sixth Circuit, the
`FCC adopted the order at issue here. In re Implemen-
`tation of Section 621(a)(1) of the Cable Commc’ns Pol-
`icy Act of 1984 as Amended by the Cable Television
`Consumer Prot. & Competition Act of 1992, 34 FCC
`Rcd 6844 (2019) (Third Report and Order) (Pet. App.
`27a-236a). The Third Report and Order reaffirmed the
`Commission’s determination, which the Sixth Circuit
`had previously upheld, that the mixed-use rule applies
`to incumbent cable operators that are common carriers.
`See Pet. App. 119a-128a.
`The FCC also identified the statutory basis for ex-
`tending the mixed-use rule to incumbent cable opera-
`tors that are not common carriers—i.e., cable operators
`whose only non-cable services are not telecommunica-
`tions services. See Pet. App. 128a-143a. The Commis-
`sion explained that Section 544(a) prohibits a franchis-
`ing authority from “ ‘regulat[ing] the services, facilities
`and equipment provided by a cable operator except to
`
`
`
`

`

`9
`
`the extent consistent with [Title VI],’ ” and that Section
`544(b)(1) “provides that franchising authorities ‘may
`not . . . establish requirements for video programming
`or other information services.’ ” Id. at 128a (quoting
`47 U.S.C. 544(a) and (b)(1)) (emphases omitted; second
`set of brackets in original). The Commission concluded
`that Title VI bars franchising authorities from regulat-
`ing information services, such as broadband Internet
`service, provided by incumbent cable operators that are
`not common carriers. Id. at 130a-131a.
`The FCC additionally determined that Title VI pre-
`cludes state and local governments from using other au-
`thority outside the cable-franchise process to circum-
`vent Title VI’s limitations. Pet. App. 143a-168a. The
`Commission observed that Section 556(c) expressly
`“preempt[s] and supersede[s]” “any provision of law of
`any State, political subdivision, or agency thereof, or
`franchising authority, or any provision of any franchise
`* * * which is inconsistent with [the Communications
`Act].” Id. at 146a (quoting 47 U.S.C. 556(c)). The FCC
`determined that Section 556(c)’s broad text showed that
`Congress “intended that states and localities could not
`‘end-run’ the Act’s limitations by using other govern-
`mental entities or other sources of authority to accom-
`plish indirectly what franchising authorities are prohib-
`ited from doing directly.” Id. at 147a-148a.
`The FCC explained that, under its interpretation, Ti-
`tle VI precludes a franchising authority or any other
`state or local governmental body from imposing fees on
`a cable operator for providing a non-cable information
`service, such as broadband Internet service. Pet. App.
`131a, 136a, 143a-145a, 149a, 153a-167a. Although the
`Commission “d[id] not set forth an exhaustive list of
`state and local laws * * * that are deemed expressly
`
`
`
`

`

`10
`
`preempted,” it noted that “preempted requirements in-
`clude” the rights-of-way fee imposed by petitioner City
`of Eugene, Oregon, as applied to cable operators’ broad-
`band Internet service. Id. at 144a n.324.
`The FCC reasoned that Section 544(a) and (b) pre-
`clude a franchising authority from imposing such a fee,
`which amounts to regulation of a cable operator’s provi-
`sion of an information service. See Pet. App. 131a, 136a,
`143a. The Commission concluded that Section 556(c)
`preempts such a fee even it is purportedly imposed
`“outside the limited scope of ” a state or local govern-
`ment’s “authority under Title VI.” Id. at 143a; see id.
`at 143a-145a, 149a. “Looking at the provisions of Title
`VI and the Act as a whole,” the FCC “ha[d] little trouble
`concluding that Congress did not intend to permit
`states, municipalities, or franchising authorities to im-
`pose fees or other requirements on cable operators be-
`yond those specified under Title VI.” Id. at 149a. The
`FCC also determined that allowing a state or local gov-
`ernment to charge a fee for a cable operator’s use of
`rights-of-way to provide non-cable services—separate
`from and in addition to the franchise fee that a franchis-
`ing authority may impose for a cable operator’s fran-
`chise to provide cable services—is inconsistent with the
`statutory provisions capping franchise fees for cable
`services at five percent of an operator’s revenues from
`providing cable services. Id. at 153a-167a (discussing
`47 U.S.C. 542(g)).
`3. Petitions for review of the Third Report and Or-
`der were filed in several circuits and ultimately consoli-
`dated in the Sixth Circuit. C.A. Order 1-2 (Jan. 15,
`2020). The court granted the petitions in part and de-
`nied them in part. Pet. App. 1a-26a.
`
`
`
`

`

`11
`
`As relevant here, the court of appeals rejected peti-
`tioners’ challenge to the FCC’s determination that Title
`VI preempts petitioner City of Eugene’s rights-of-way fee
`as applied to a cable operator’s broadband Internet ser-
`vice. Pet. App. 13a-25a. The court stated that “the test
`for preemption under [Sections 544(a) and 556(c)] is
`whether state or local action is ‘inconsistent with’ a spe-
`cific provision of the Act,” and that “[t]he Act therefore
`preempts actions that violate or circumvent any of its pro-
`visions.” Id. at 15a. The court “agree[d] with the FCC’s
`conclusion that ‘states and localities may not “end-run”
`the Act’s limitations by using other governmental entities
`or other sources of authority to accomplish indirectly
`what franchising authorities are prohibited from doing di-
`rectly.’ ” Id. at 15a-16a (citation omitted).
`Applying that interpretation, the court of appeals ex-
`plained that “[a] franchising authority in the City of Eu-
`gene therefore could not, consistent with § 544(b)(1),
`impose on a cable operator a seven-percent broadband
`fee as a condition for a cable franchise.” Pet. App. 23a.
`The court reasoned that Section 544(a) precludes a fran-
`chising authority from regulating any of a cable opera-
`tor’s “ ‘services’ ” except “ ‘to the extent consistent with
`[Title VI],’ ” and that Section 544(b)(1) bars a franchis-
`ing authority from establishing requirements for a ca-
`ble operator’s “ ‘information services,’ ” which “undis-
`puted[ly] * * * include[ ] broadband services.” Ibid.
`(quoting 47 U.S.C. 544(a) and (b)(1)) (emphasis omit-
`ted). The court noted that Section 541 requires constru-
`ing a cable franchise “ ‘to authorize the construction of
`a cable system over public rights-of-way’ ” and “makes
`clear, albeit by implication, that a franchise shall be con-
`strued to allow the cable operator to operate the cable
`system.” Ibid.
`
`
`
`

`

`12
`
`The court of appeals held that the City had “circum-
`vented that limitation when it imposed the same fee on
`a cable operator by means of the City’s police power.”
`Pet. App. 23a. The court explained that, when the City
`had “granted a cable operator there a franchise under
`§ 541(b)(1),” it had “granted the cable operator the right
`to use its cable system, including—as Congress plainly
`anticipated—the right to use that system to provide infor-
`mation services,” and had “surrendered its right to ex-
`clude the cable operator from the City’s rights-of-way.”
`Id. at 24a. But the City had “impose[d] a seven-percent
`‘license fee’ upon the same cable operator to use the same
`cable system on the same ‘rights-of-way.’ ” Ibid. (citation
`omitted). The court concluded that “the City’s imposition
`of a ‘license fee’ equal to seven percent of the operator’s
`revenues from broadband services is merely the exercise
`of its franchise power by another name,” and that Sec-
`tion 544(b)(1) “expressly barred the City from exercis-
`ing its franchise power to that end.” Ibid.
`The court of appeals rejected the FCC’s alternative
`rationale that fees imposed on a cable operator’s non-
`cable services are inconsistent with the statutory cap on
`franchise fees for the operator’s cable services. Pet.
`App. 18a-22a. The court reasoned that such a fee for
`non-cable services falls outside Title VI’s definition of
`the “ ‘franchise fee’ ” subject to that five percent cap as
`a tax, fee, or assessment imposed “on a cable operator
`* * * solely because of [its] status as such.” 47 U.S.C.
`542(g)(1); see Pet. App. 18a-21a. In the court’s view,
`“[w]hat gives a person the status of a cable operator” as
`defined in Title VI “is the person’s provision of cable
`services,” but “the City of Eugene’s fee on broadband
`services, by definition, is not imposed based on the op-
`erator’s provision of cable services.” Pet. App. 22a.
`
`
`
`

`

`13
`
`ARGUMENT
`The court of appeals correctly upheld the FCC’s de-
`termination in the Third Report and Order that Title VI
`expressly bars petitioner City of Eugene from imposing
`its seven percent fee for using its rights-of-way on cable
`operators providing broadband Internet service. The
`court’s decision does not conflict with any decision of
`this Court, of another court of appeals, or of the highest
`court of any State. Further review is not warranted.
`1. Petitioners contend (Pet. 13-28) that the court of
`appeals erred in upholding the Commission’s applica-
`tion of Title VI’s preemption provisions to state and lo-
`cal governments’ fees for cable operators’ use of rights-
`of-way to provide information services. That argument
`lacks merit and does not warrant further review.
`a. Title VI expressly preempts franchising authori-
`ties and other state or local government entities from
`subjecting cable operators to requirements that are not
`consistent with Title VI. Section 544(a) provides that
`“[a]ny franchising authority may not regulate the ser-
`vices, facilities, and equipment provided by a cable op-
`erator except to the extent consistent with [Title VI].”
`47 U.S.C. 544(a). Section 556(c) provides (with an ex-
`ception that is irrelevant here) that “any provision of law
`of any State, political subdivision, or agency thereof, or
`franchising authority, or any provision of any franchise
`granted by such authority, which is inconsistent with
`this chapter shall be deemed to be preempted and su-
`perseded.” 47 U.S.C. 556(c).
`A requirement is not consistent with Title VI if it is
`“ ‘incompatible’ ” with the statute, e.g., if the require-
`ment “violate[s] or circumvent[s] any of its provisions.”
`Pet. App. 15a (citation omitted). The court of appeals ac-
`cordingly agreed with the FCC that “states and localities
`
`
`
`

`

`14
`
`may not ‘end-run’ the Act’s limitations by using other
`governmental entities or other sources of authority to
`accomplish indirectly what franchising authorities are
`prohibited from doing directly.” Ibid. (brackets and ci-
`tation omitted).
`Applying that interpretation, the court of appeals
`correctly upheld the FCC’s determination that the City
`of Eugene’s rights-of-way fee, as applied to cable oper-
`ators’ broadband Internet service, is not consistent with
`Title VI and therefore is expressly preempted.

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