`
`In the Supreme Court of the United States
`
`
`
`CITY OF EUGENE, OREGON, ET AL.,
`Petitioners,
`
`
`(additional counsel listed on inside cover)
`
`v.
`FEDERAL COMMUNICATIONS COMMISSION
`AND THE UNITED STATES OF AMERICA,
`Respondents.
`
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI TO THE
`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`
`
`
`REPLY BRIEF FOR THE PETITIONERS
`
`
`
`JOSEPH VAN EATON
`TILLMAN L. LAY
`CHERYL A. LEANZA
`Counsel of Record
`BEST BEST & KRIEGER LLP
`JEFFREY M. BAYNE
`1800 K Street, NW
`LAUREN L. SPRINGETT
`Suite 725
`SPIEGEL & MCDIARMID LLP
`Washington, DC 20006
`1875 Eye Street, NW
`(202) 785-0600
`Suite 700
`Joseph.VanEaton@bbklaw.com
`Washington, DC 20006
`(202) 879-4000
`Counsel for City of
`Tim.Lay@spiegelmcd.com
`Portland,
`Oregon, et al.
`Counsel for City
`of Eugene, Oregon
`
`
`
`
`
`
`MICHAEL J. WATZA
`KITCH DRUTCHAS WAGNER
`VALITUTTI & SHERBROOK
`One Woodward Avenue
`Suite 2400
`Detroit, MI 48226-5485
`Mike.Watza@kitch.com
`Counsel for City of Livonia,
`Michigan, et al.
`
`
`
`
`
`
`i
`RULE 29.6 STATEMENT
`The Rule 26.9 disclosure in the Petition for
`Certiorari remains accurate.
`
`
`
`
`
`
`ii
`TABLE OF CONTENTS
`
`Page
`Rule 29.6 Statement ............................................ i
`Table of Contents ............................................... ii
`Table of Authorities........................................... iii
`Reply Brief for the Petitioners ........................... 1
`I. The oppositions confirm that the case
`presents conflict on an important issue
`that will have significant national
`impacts. .................................................... 1
`II. Clarification is needed to prevent the
`improper expansion of implied
`preemption when Congress preserves
`state or local authority to act. ................. 2
`III.The decision below conflicts with that of
`the Oregon Supreme Court on an
`important question of federal law. .......... 6
`IV. Respondents are incorrect on the merits
`and competitive impact. .......................... 9
`Conclusion ........................................................ 12
`
`
`
`
`
`
`
`iii
`TABLE OF AUTHORITIES
`
`Page
`
`
`
`FEDERAL COURT CASES
`Branche v. Airtran Airways, Inc., 342 F.3d
`1248 (11th Cir. 2003) .................................. 4
`
`Chevron U.S.A. Inc. v. Natural Resources
`Defense Council, Inc., 467 U.S. 837
`(1984) ........................................................... 6
`
`City of Eugene, Oregon v. Federal
`Communications Commission, 998 F.3d
`701 (6th Cir. 2021) ............................ passim
`Geier v. American Honda Motor Co., Inc.,
`529 U.S. 861 (2000) ..................................... 4
`Gregory v. Ashcroft, 501 U.S. 452 (1991) ......... 6
`
`Lawson-Ross v. Great Lakes Higher Educ.
`Corp., 955 F.3d 908 (11th Cir. 2020) .......... 4
`Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
`519 (2012) .................................................... 6
`PGA Tour, Inc. v. Martin, 532 U.S. 661
`(2001) ......................................................... 10
`Sprietsma v. Mercury Marine, 537 U.S. 51
`(2002) ........................................................... 4
`Sturgeon v. Frost, 577 U.S. 424 (2016) ............ 4
`
`
`
`iv
`
`Page
`
`
`United States v. Morrison, 529 U.S. 598
`(2000) .......................................................... 6
`Yee v. City of Escondido, Cal., 503 U.S. 519
`(1992) ......................................................... 10
`
`STATE COURT CASES
`City of Eugene v. Comcast of Oregon II, Inc.,
`375 P.3d 446 (Or. 2016) .................... passim
`
`
`
`FEDERAL STATUTES
`Cable Communications Policy Act of 1984, 47
`U.S.C. §§ 521-573 .............................. passim
`47 U.S.C. § 522(6) ....................................... 5
`47 U.S.C. § 541 ............................................ 9
`47 U.S.C. § 541(a)(2) ................................... 7
`47 U.S.C. § 541(b)(1) ............................... 5, 8
`47 U.S.C. § 541(b)(3) ........................... 5, 6, 7
`47 U.S.C. § 541(b)(3)(A)(i) ........................... 5
`47 U.S.C. § 541(b)(3)(B) .............................. 5
`47 U.S.C. § 541(d)(2) ............................. 3, 10
`47 U.S.C. § 542 ........................................ 5, 9
`
`
`
`v
`
`Page
`
`
`
`47 U.S.C. § 544 ............................................ 9
`47 U.S.C. § 544(a) ....................................... 4
`47 U.S.C. § 544(b) ....................................... 4
`47 U.S.C. § 544(b)(1) ............................... 4, 5
`47 U.S.C. § 556(a) ................................... 3, 5
`47 U.S.C. § 556(c) ........................................ 4
`Telecommunications Act of 1996, Pub. L. No.
`104-104, 110 Stat. 56 .......................... 10, 11
`§ 601(c), 47 U.S.C. § 152 note ................... 10
`
`11 U.S.C. § 526(d) ............................................. 3
`12 U.S.C. § 4908(a)(2) ...................................... 3
`12 U.S.C. § 5551(a) ........................................... 3
`42 U.S.C. § 14502(a) ......................................... 3
`42 U.S.C. § 14953(a) ......................................... 3
`43 U.S.C. § 299(i) .............................................. 3
`
`OTHER AUTHORITIES
`Sandra Zellmer, Preemption by Stealth, 45
`Hous. L. Rev. 1659 (2009) ........................... 4
`
`
`
`1
`REPLY BRIEF FOR THE PETITIONERS
`
`I. The oppositions confirm that the case
`presents conflict on an important issue
`that will have significant national impacts.
`The court of appeals permitted a federal agency
`to preempt state and local authority not expressly
`prohibited by statute and expanded the bounds of
`implied preemption by prohibiting state and local
`governments from requiring cable operators to pay
`generally applicable fees for use of public property to
`provide broadband and other non-cable services, even
`though those fees are consistent with the Cable Act’s1
`limits on state and local taxes, fees, or assessments.
`Respondent NCTA
`confirms
`the
`substantial
`importance of this issue: it 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. NCTA Opp. 7-9, 20-22.
`Moreover, the Sixth Circuit decision below squarely
`conflicts with the decision of the Oregon Supreme
`Court in City of Eugene v. Comcast of Oregon II, Inc.,
`375 P.3d 446 (Or. 2016) (“Comcast of Oregon”) on the
`critical issues raised. This Court should grant review
`to clarify its preemption doctrine and resolve the
`conflicting analyses adopted by the Sixth Circuit and
`Oregon Supreme Court.
`
`
`1 Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521-573
`(“Cable Act” or “Act”).
`
`
`
`2
`II. Clarification is needed to prevent the
`improper expansion of implied preemption
`when Congress preserves state or local
`authority to act.
`Because the Cable Act preserves state and local
`authority many times over, this case presents an
`excellent vehicle for this Court to curb the broad
`expansion of implied preemption doctrine below.
`1. The Government and NCTA deny that this
`case involves implied preemption, but then proceed to
`demonstrate that implied preemption doctrine is at
`the heart of the case.
`The Government first (correctly) explains that
`the scope of express preemption provisions
`is
`determined by the “plain wording” that “Congress
`prescribed” in the statute. SG Opp. 15 (citations
`omitted). But because the Sixth Circuit found that
`Eugene’s fee was not expressly precluded, see id. at 16-
`17 and Pet. 11, the Government justifies the decision
`below by invoking the implied preemption doctrine
`(without naming it) to argue that preemption here is
`“not confined to requirements that directly conflict”
`with federal law or that would make compliance with
`federal law impossible. SG Opp. 16. According to the
`Sixth Circuit and the Government, a provision that
`preempts “inconsistent” state and
`local action
`“encompasses actions … that would ‘circumvent’ or
`‘end-run,’” the statute. Id. (quoting App. 15a).
`This test reads any federal statute that
`preempts state or local requirements “inconsistent
`with” a federal statute to impliedly preempt any
`requirements that are not expressly authorized by the
`statute. It grants federal agencies sweeping authority
`to preempt based on the agency’s view of what a
`statute might have said rather than what it does say.
`
`
`
`3
`That presents exactly the danger this Court must
`prevent: preemption of state and local authority
`untethered to the statutory text or careful application
`of implied preemption jurisprudence. That danger
`extends far beyond the Cable Act. Contra NCTA Opp.
`23-24. Even a cursory review identifies many federal
`statutes that contain “inconsistent with” preemption
`language.2
`2. To use implied preemption in this way is
`even less tenable in view of the Cable Act’s other
`provisions expressly preserving the state and local
`authority in question.
`local
`Section 556(a) preserves state and
`authority by stating that “[n]othing … shall be
`construed to affect any” state or local authority
`“regarding matters of public health, safety, and
`welfare, to the extent consistent with the express
`provisions” of the Cable Act. 47 U.S.C. § 556(a)
`(emphasis added). Yet the Sixth Circuit preempted
`fees like Eugene’s based on rights the Cable Act
`supposedly grants to cable operators “by implication,”
`App. 23a, not the Act’s express provisions. Section
`541(d)(2) states that “[n]othing … shall be construed
`to affect the authority of any State” to regulate “any
`communications service other than cable service.” 47
`U.S.C. § 541(d)(2) (emphasis added). These provisions
`are the most “directly applicable” because they
`instruct courts and the Federal Communications
`Commission (“FCC”) how to interpret the Act. Pet. 22;
`contra NCTA Opp. 18 (emphasis omitted). The Sixth
`
`2 E.g., 11 U.S.C. § 526(d) (debt relief); 12 U.S.C. § 4908(a)(2)
`(mortgage
`transactions); 12 U.S.C. § 5551(a)
`(consumer
`protection); 42 U.S.C. § 14502(a) (liability of volunteers); 42
`U.S.C. § 14953(a) (adoption); 43 U.S.C. § 299(i) (coal and mineral
`rights).
`
`
`
`4
`Circuit’s back-of-the-hand to these provisions poses
`substantial questions with far-reaching implications,
`because savings clauses like these are commonly
`found in other cooperative federalism statutes on
`subjects as varied as environmental law, drugs and
`medical devices, agriculture, vehicles, and more.
`Sandra Zellmer, Preemption by Stealth, 45 Hous. L.
`Rev. 1659, 1661 (2009); contra NCTA Opp. 23-24.
`Although the mere existence of an explicit
`preemption or savings clause does not, in itself,
`preclude implied preemption via “ordinary pre-
`emption principles,” Geier v. American Honda Motor
`Co., Inc., 529 U.S. 861, 869 (2000), the Court’s
`preemption precedent does not address what analysis
`is required before
`implying preemption when
`Congress specifically preserves the relevant state and
`local authority. It is “quite wrong” to consider a
`federal decision not to regulate “as the functional
`equivalent of a regulation prohibiting all States and
`their political subdivisions from adopting such a
`regulation.” Sprietsma v. Mercury Marine, 537 U.S.
`51, 65 (2002); Pet. 26. A statute’s overall structure
`should inform its meaning. Sturgeon v. Frost, 577 U.S.
`424, 438 (2016). The Eleventh Circuit, for example,
`looked to the overall structure of a statute to hold that
`an express preemption provision
`implies that
`Congress did not intend to preempt more broadly.
`Lawson-Ross v. Great Lakes Higher Educ. Corp., 955
`F.3d 908, 920 (11th Cir. 2020); Branche v. Airtran
`Airways, Inc., 342 F.3d 1248, 1253 (11th Cir. 2003).
`3. Respondents emphasize the Sixth Circuit’s
`reliance on Section 544(a)-(b), 47 U.S.C. § 544(a)-(b),
`and argue that state and local actions assessing fees
`for non-cable use of the rights-of-way are expressly
`preempted by that provision by virtue of Section
`556(c). SG Opp. 18-19; NCTA Opp. 27. Section 544(a)
`
`
`
`5
`franchising authorities to act
`merely requires
`consistently with the Cable Act, and Section 556(a)
`similarly preserves local authority if consistent with
`the statute’s express provisions. Actions outside the
`bounds of the Cable Act are not prohibited. Contra
`NCTA Opp. 14 (citing App. 23a). The only express
`prohibitions are in Section 544(b), but the Sixth
`Circuit used implied preemption to expand Section
`544(b) far beyond its scope.
`Section 544(b) applies only when a state or
`locality is acting as a cable franchising authority, and
`limits only what that authority may require when
`requesting cable franchise proposals and what
`requirements it may enforce in a cable franchise. 47
`U.S.C. § 544(b)(1)-(2).3 Subsection 541(b)(3) under-
`scores that the Cable Act’s limits merely prohibit
`franchising authorities from imposing requirements
`“under this subchapter” (i.e., the Cable Act) and thus
`do not reach requirements imposed outside of the
`cable franchising process. 47 U.S.C. § 541(b)(3)(A)(i),
`541(b)(3)(B) (emphasis added); see also Comcast of
`Oregon at 458-61. Eugene’s broadband ordinance is
`not part of any cable franchise (let alone a request for
`franchise proposal). Pet. 7-8. In fact, Eugene’s fee was
`not imposed until after the City had already granted
`
`
`3 The Sixth Circuit’s reading of Section 544(b)(1) as reaching fees
`on information services, see SG Opp. 18, also conflicts with the
`plain text of the Cable Act’s franchise fee provision, 47 U.S.C.
`§ 542. Section 544(b)(1) bars
`“requirements
`for video
`programming or other information services.” If this prohibits fees
`on information services, it also bars fees on video programming.
`But “video programming” is included in the definition of “cable
`service,” 47 U.S.C. § 522(6), and Section 542 expressly permits
`fees on cable service revenues (but does not prohibit non-cable
`revenue fees, infra IV.1).
`
`
`
`6
`Comcast a cable franchise through a separate
`agreement. Comcast of Oregon at 449-50.
`It is startling to see the Government claim that
`use of un-preempted state sovereign authority
`amounts to applying a “different label” or “donning a
`different hat.” SG Opp. 16, 18. The legitimate exercise
`of a state’s constitutionally recognized power is not a
`ruse to circumvent federal law. “States retain
`substantial sovereign powers under our constitutional
`scheme ….” Gregory v. Ashcroft, 501 U.S. 452, 461
`(1991); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
`519, 535 (2012); United States v. Morrison, 529 U.S.
`598, 618 (2000).4
`III. The decision below conflicts with that of
`the Oregon Supreme Court on an
`important question of federal law.
`The decision below upheld the FCC’s decision
`to explicitly “repudiate” the Oregon Supreme Court’s
`opinion
`in Comcast of Oregon. App. 173a.
`Respondents’ attempts to obscure the conflict are
`incorrect.
`1. The Government asserts that the only
`“relevant part” of Comcast of Oregon (at 458-61) is its
`discussion of Section 541(b)(3) and contends that
`discussion
`is now
`irrelevant given the FCC’s
`subsequent reclassification of broadband internet as
`
`4 The Government’s suggestion, SG Opp. 19, that Chevron U.S.A.
`Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
`(1984), cures any misapplication of
`implied preemption
`illustrates why a clarification of the implied preemption doctrine
`is important. A clearer doctrine allows courts to ensure that the
`agency has conducted the textual analysis required at Chevron’s
`step one. As the Government brief suggests, the absence of
`clarity is an invitation to regulatory overreach that escapes
`review under Chevron step two.
`
`
`
`7
`an information service rather than a telecommunica-
`tions service under federal law. SG Opp. 20-22. But
`the Oregon Supreme Court’s decision was not based
`exclusively, or even primarily, on Section 541(b)(3).
`Comcast of Oregon’s critical holding (and the
`one with which the court of appeals decision squarely
`conflicts) is its determination that a Cable Act
`franchise does not confer a federal right to use local
`rights-of-way to provide any non-cable services.
`Comcast of Oregon at 456-58, 462-63. The Oregon
`Supreme Court explained that a Cable Act franchise
`establishes the right to construct a cable system and
`provide cable services, but any authorization to
`provide non-cable services must be “determined by
`other applicable laws” that the Cable Act’s restrictions
`do not reach. Id. at 458. NCTA concedes that the
`Oregon Supreme Court considered these broader
`points. NCTA Opp. 17.
`2. On these critical points, the conflict between
`the Oregon Supreme Court and Sixth Circuit is
`obvious. In construing Section 541(a)(2)’s authoriza-
`tion of the construction of a cable system over the
`public rights-of-way, the Oregon Supreme Court
`rejected Comcast’s argument that a cable franchise
`implicitly confers “the right to use the cable system to
`provide services in addition to cable services that the
`cable system is physically capable of providing,
`including [broadband internet] services.” Comcast of
`Oregon at 456. Instead, it concluded that “a plain
`reading of the statute suggests that the scope of
`Comcast’s right to use the cable system [i.e., its right
`to provide non-cable services] is determined by the
`franchise agreement or other provisions of law.” Id. at
`
`
`
`8
`457.5 In direct conflict, the Sixth Circuit held that
`Section 541(b)(1), “by implication,” confers “the right
`to use [a cable] system to provide information service.”
`App. 23a-24a.
`The Government’s cursory acknowledgement of
`this conflict, SG Opp. 22, underscores the need for this
`Court’s review. It explains that the Sixth Circuit
`preempted “because the activity on which the City of
`Eugene seeks to impose fees—namely, the provision
`of information services over a cable system—is one
`that Congress in enacting Title VI expected cable
`operators to undertake.” Id. at 22 (citing App. 23a-
`24a). In addressing this very point, the Oregon
`Supreme Court reasoned that, although Congress
`may have understood that cable systems might
`provide non-cable services, this “does not establish, as
`Comcast contends, that the Cable Act grants cable
`operators an affirmative right to provide non-cable
`services, prohibiting state or local authorities from
`regulating noncable services or charging fees for the
`right to provide noncable services over the cable
`system that occupies public rights of way.” Comcast of
`Oregon at 457.
`3. The Government also wrongly suggests there
`is no conflict because the Sixth Circuit relied on
`Section 544(b)(1), a provision the Oregon Supreme
`Court did not address, speculating that the Oregon
`Supreme Court did not evaluate Section 544(b)(1)
`“[b]ecause broadband Internet service was not then
`classified as an information service.” SG Opp. 21. But
`
`5 The Government properly finds a right to provide cable service
`in Section 541(b)(1)’s prohibition from offering cable service
`without a franchise. SG Opp. 17. But that only highlights the
`lack of similar statutory language evidencing a right to provide
`broadband internet or any other non-cable services.
`
`
`
`9
`the Oregon Supreme Court did not address Section
`544(b)(1) because it held that a Cable Act franchise
`does not confer a federal right to provide non-cable
`services
`(including both
`information and tele-
`communications services alike). Comcast of Oregon at
`456-58. That holding makes Section 544(b)(1)’s
`reference to “information service[]” irrelevant.
`The Sixth Circuit
`found
`the opposite,
`concluding that Eugene’s fee “is merely the exercise of
`its franchise power by another name” because the
`Cable Act authorizes the provision of non-cable
`services. App. 24a. It thus reached Section 544(b)(1)
`only because it first parted with the Oregon Supreme
`Court on the scope of federal rights conferred by a
`Cable Act franchise. That fundamental conflict
`supports granting the petition, not denying it.
`IV. Respondents are incorrect on the merits
`and competitive impact.
`1. Respondents do not dispute that Section 542
`is the specific provision Congress enacted to limit fees
`imposed on cable operators; they instead claim fees
`such as Eugene’s amount to a prohibited information
`services requirement imposed on cable operators. SG
`Opp. 17-18; NCTA Opp. 27. But Congress specifically
`addressed state and
`local
`“tax[es],
`fee[s], or
`assessment[s] of any kind” in Section 542, adopting a
`detailed definition of cable franchise fees and capping
`only those defined fees. Taxes, fees, and assessments
`“of any kind” falling outside Section 542 (like
`Eugene’s) do not violate the fee cap. By implying
`additional, unwritten limitations on taxes, fees, and
`assessments in Sections 541 and 544, the Sixth
`Circuit ignored the obvious: had Congress intended to
`preclude “tax[es], fee[s], or assessment[s] of any kind”
`on cable operators’ provision of non-cable services, it
`
`
`
`10
`could have done so in the franchise fee section. It
`turns textual analysis on its head to leap over the
`Act’s specific tax and fee provision and imply
`additional tax and
`fee
`limitations
`from other
`provisions of the Act that do not even mention taxes,
`fees, or assessments.6
`2. Departure from the statutory language is not
`justified by NCTA’s assertion that allowing for fees on
`cable operators’ non-cable services would “double
`charge” for the same rights. NCTA Opp. 2, 21, 26-27.
`As the Oregon Supreme Court correctly explained, the
`right to construct a cable system does not inherently
`grant with it the right to provide whatever services a
`cable operator may wish to offer over that system,
`much less to do so without paying generally applicable
`fees. Comcast of Oregon at 456-58, 462-63. Nor is
`Eugene’s broadband fee assessed on cable service
`revenue. Pet. 8. No language in the Cable Act bars
`taxes or fees for use of the rights-of-way should an
`operator wish to engage in additional lines of business
`beyond providing cable service.
`The balance struck by Congress, as properly
`reflected in Comcast of Oregon, ensures competitive
`neutrality between cable operators’ and non-cable
`operators’ provision of non-cable services. Petitioners
`
`6 This conclusion is confirmed by Section 541(d)(2) (reserving
`State authority to regulate non-cable services) and by the tax
`savings provision of the Telecommunications Act of 1996, Pub. L.
`No. 104-104, § 601(c), 110 Stat. 56, 143-44 (codified at 47 U.S.C.
`§ 152 note). Pet. 16. NCTA argues that this provision was not
`raised below, NCTA Opp. 18, but it was in Eugene’s rehearing
`petition. In any event, the issue—whether the Cable Act, as
`amended by the 1996 Act, preempts Eugene’s fee—was raised
`below, and that is sufficient. See PGA Tour, Inc. v. Martin, 532
`U.S. 661, 678 n.27 (2001); Yee v. City of Escondido, Cal., 503 U.S.
`519, 535 (1992).
`
`
`
`11
`do not dispute that a cable franchise grants a cable
`operator the right to construct and operate a cable
`system in the right-of-way. But that right does not
`also confer on an operator federal immunity from all
`other generally applicable
`fees, regulations, or
`requirements relating to non-cable services. This is
`hardly an exceptional result. It is no different from
`requiring restaurants to obtain both food service and
`liquor licenses and pay taxes on both food and liquor
`sales.
`
`Contrary to NCTA’s claims, it is the decision
`below, not the fee at issue, that creates competitive
`disparities. A cable operator providing broadband
`internet service would be immune from fees on
`broadband services, paying only a fee based on its
`(declining) revenue from cable services. Br. of Amici
`International Municipal Lawyers Association et al.
`17-19. Its non-cable competitors, however, would be
`subject to those fees. This competitive disparity is
`exactly what Congress intended to prevent when it
`amended the Cable Act in 1996. See Pet. 5-6, 16-17.
`
`
`
`
`12
`CONCLUSION
`The Court should grant the petition.
`
`
`Respectfully submitted,
`
`
`TILLMAN L. LAY
`Counsel of Record
`JEFFREY M. BAYNE
`LAUREN L. SPRINGETT
`SPIEGEL & MCDIARMID LLP
`1875 Eye Street, NW
`Suite 700
`Washington, DC 20006
`(202) 879-4000
`Tim.Lay@spiegelmcd.com
`Counsel for City
`of Eugene, Oregon
`
`MICHAEL J. WATZA
`KITCH DRUTCHAS WAGNER
`VALITUTTI & SHERBROOK
`One Woodward Avenue
`Suite 2400
`Detroit, MI 48226-5485
`Mike.Watza@kitch.com
`Counsel for City of
`Livonia, Michigan, et al.
`
`JOSEPH VAN EATON
`CHERYL A. LEANZA
`BEST BEST & KRIEGER LLP
`1800 K Street, NW
`Suite 725
`Washington, DC 20006
`(202) 785-0600
`Joseph.VanEaton@bbklaw.com
`Counsel for City of
`Portland,
`Oregon, et al.
`
`
`
`
`
`
`
`
`
`
`
`January 18, 2022
`
`
`