Santa Fe 2% Fee an ‘Old-Style Revenue Producer,’ Complains NMSurf

The 10th U.S. Circuit Court of Appeals should revisit the “material prohibition standard” under Section 253 of the Telecommunications Act “in light of the cost-based test adopted by the FCC” in order 18-133, said wireless ISP NMSurf in its opening brief Tuesday (docket 22-2131). NMSurf (formerly CNSP) is appealing the U.S. District Court for New Mexico order upholding a local telecom law requiring a revenue-based fee in Santa Fe (see 2211230073). Though the FCC adopted the order for small-cell wireless, “it has broad reasoning and application with policies that go beyond small cell,” said NMSurf. Santa Fe’s ordinance fee was “not adopted based on cost incurred” by the city but rather is “an old-style revenue producer of the sort that predates the TCA,” it said. Additionally, Santa Fe’s 2% fee “was arbitrarily adopted, without sufficient connection to use” of the public rights-of-way by service providers, it said. NMSurf asked the court to apply the FCC cost test to the 2% fee and “find preemption under Section 253.”