Qwest Corp. v. City of Portland

Opinion by Judge RAWLINSON; Concurrence by Judge FERGUSON

Qwest Corporation (Qwest), a telecommunication provider, appeals the district court’s summary judgment in favor of the City of Portland and other Oregon cities (Cities), who intervened in the action. Qwest contends that the Federal Telecommunications Act of 1996(FTA), 47 U.S.C. § 253 , preempts the municipal ordinances pursuant to which the franchise fees were assessed. The district court ruled that the Cities’ ordinances and various franchise agreements were not preempted by the FTA. 1 The district court also determined that the revenue-based fees imposed on the telecommunication providers by the Cities were valid under the FTA. Because the district court failed to conduct an individualized § 253 preemption analysis for each city’s ordinances, and misapplied our holding in City of Auburn v. Qwest, 260 F.3d 1160 (9th Cir.2001), we must remand the case to the district court for additional consideration. Because the district court correctly concluded that Qwest’s challenge to the Cities’ gross revenue-based fees was barred by claim and issue preclusion, that ruling is affirmed.

I.

BACKGROUND

In 1932, the Portland City…

concurring specially:

I concur to remand this case to District Court for additional consideration as to whether each individual city ordinance at issue is preempted by § 253 of the Federal Telecommunications Act of 1996(FTA). In so doing, however, the District Court must consider whether the Cities’ ordinances in whole or in part survive preemption under the safe harbor provisions of the FTA, particularly § 253(c). See City of Auburn v. Qwest, 260 F.3d 1160 , 1177 (9th Cir.2001). The District Court must also deter7 mine whether individual provisions of a particular city ordinance that might be found to be preempted by § 253 of the FTA can be severed from the remaining provisions of the ordinance that might not be found to be preempted. See Auburn, 260 F.3d at 1180.