Time Warner Telecom of Oregon, LLC v. City of Portland

*498 MEMORANDUM **

As clarified at oral argument, Qwest Communications Corporation (Qwest) appeals the district court’s judgment in favor of the City of Portland (the City) on Qwest’s challenge to the franchise fees based on per-foot usage, and the “in-kind” provisions of its franchise agreement.

Time Warner Telecom of Oregon, LLC (TWT) appeals the district court’s judgment in favor of the City on TWT’s challenge to the five percent gross revenue fee included in its franchise agreement, and the district court’s determination that the services provided by TWT were included within the agreement’s definition of “telecommunication services.”

The City cross-appeals the district court’s determination that TWT’s “in-kind” requirement violated the Telecommunications Act.

1. The in-kind requirements that Qwest challenges, which were provided to the City twelve years ago, do not vest the City with broad discretion, and they do not have the effect of prohibiting the provision of telecommunications services, as demonstrated by Qwest’s continued operation. See Sprint Telephony PCS, LP v. County of San Diego, 543 F.3d 571, 578 (9th Cir.2008) (en banc) (setting the standard for whether a…