SCOTUS Denial of Certiorari in City of Portland v. FCC Renders Effective FCC's Rulings on Access to Municipal Utility Poles and Rights-of-Way

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP

On June 28, 2021, the U.S. Supreme Court denied the petition for certiorari filed by consortiums of various municipal governments and associations seeking to overturn the Ninth Circuit's decision in City of Portland v. FCC, which upheld the Federal Communications Commission's (FCC) extension of Section 253 protections to municipal property in the public right-of-way, including utility poles. Accordingly, as concluded by the FCC in its 2018 Declaratory Ruling, municipalities may not take actions that prohibit or have the effect of prohibiting access to utility poles for the provision of telecommunications services.

In the same decision, the FCC concluded that municipal fees for access to the rights-of-way (and property in the ROW) have the effect of prohibiting access unless they are based on objectively reasonable costs of providing access. Specifically, the FCC concluded that "effective prohibition extends to fees for all government-owned property in the [right-of-way], including utility poles."

In upholding the FCC, the Ninth Circuit rejected arguments of the municipalities that the FCC's interpretation of Section 253 evaded the municipal exemption in Section 224 governing pole attachments, concluding "The FCC responded appropriately when it said, '[n]othing in Section 253 suggests such a limited reading, nor does Section 224 indicate that other provisions of the Act do not apply' …. Because Section 253 does not exempt public power utilities from its terms, the FCC reasonably relied on Section 253 to regulate such utilities."

See our prior advisory on the Ninth Circuit upholding the FCC's orders.

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