Adam Bender

Black voters from the Atlanta area pressed a federal appeals court to affirm a lower court’s finding that Georgia’s elections system for the Public Service Commission illegally dilutes Black votes in violation of the 1965 Voting Rights Act. In a Wednesday brief in case 22-12593, the appellee group disagreed with the state that partisanship, not race, explained why the Georgia PSC has had mainly white commissioners.

Maryland is weighing options after a state court struck down the state’s digital ad tax law, the state attorney general’s office said Monday. “Our office is reviewing the decision to determine next steps,” a spokesperson emailed. Anne Arundel Circuit Court Judge Alison Asti ruled from the bench at a Monday motions hearing in the lawsuit by Comcast against Maryland’s comptroller (case C-02-CV-21-000509). The ruling pleased Comcast, a spokesperson said. A federal court earlier said the Tax Injunction Act precluded it from reviewing the tax, but that court continues to review the state’s prohibition on passing on the tax’s costs to consumers (see 2209070026).

At a federal court’s prompting, AT&T invoked the deemed-granted provision of the Illinois small-cells law in a wireless infrastructure dispute with Monroe County. The U.S. District Court in East St. Louis, Illinois, last month declined to give AT&T summary judgment on other state law and Telecom Act violations alleged against Monroe County (case 3:20-CV-1327-NJR). But the court asked AT&T to amend its complaint to raise a shot-clock issue the carrier had raised too late in the process.

Multiple infrastructure lawsuits by wireless companies against local governments rose to federal appeals courts in recent months. Meanwhile, across the U.S., industry continues to litigate against some localities in district courts while settling with others. Local governments had warned that the FCC’s 2018 small-cells order, preempting aspects of local reviews, would cause more litigation, “and I think it did,” said former NATOA General Counsel Nancy Werner.

A federal court upheld a local telecom law requiring a revenue-based fee in Santa Fe, New Mexico. The U.S. District Court in Albuquerque granted summary judgment to the city in a Sept. 28 order on a case involving a challenge by local internet provider CNSP (case 1:17cv355). The company challenged Santa Fe's laws regulating broadband infrastructure in the right of way (ROW). CNSP said that by requiring a revenue-based fee of 2% of all gross charges, Santa Fe's law requires too much compensation for using the ROW, violating the 1996 Telecom Act’s Section 253. Also, CNSP said Santa Fe's contract with another ISP, Cyber Mesa, violated Section 253 by giving that company an unfair competitive advantage. Santa Fe's ROW law, including the 2% fee, doesn’t “materially inhibit the provision of broadband internet service,” ruled Judge Kenneth Gonzales. The ISP said the FCC's 2018 small-cells order banned revenue-based fees, requiring them instead to be cost-based, but the judge noted that the agency’s order was about 5G wireless infrastructure, which wasn’t involved in the CNSP case. Also, the court is bound by 10th Circuit precedent, not FCC opinion, Gonzales said. “The Court, despite the norm for deference to agencies found in” the Chevron doctrine, isn’t “persuaded that an administrative ‘Declaratory Ruling’ expressing a preference on a split in caselaw [sic] controls the courts." The 10th Circuit hasn’t “adopted a view antagonistic to revenue-based fees for wireline infrastructure,” the judge said. CNSP didn’t show the fee actually prohibited its business, said Gonzales: The company added customers during the case and plans to expand. On the contested contract, Gonzales said significant disputed facts precluded summary judgment for CNSP. "Even if the Court resolved all disputed facts in CNSP's favor, Santa Fe raises sufficient dispositive legal issues related to essential elements of CNSP's claims that the Court concludes summary judgment in the City's favor is appropriate,” he said. “CNSP has raised insufficient facts to show that an improper and preemptable competitive advantage has been bestowed upon Cyber Mesa or that an absolute prohibition or exclusion currently restricts CNSP -- even if the Cyber Mesa contract is indeed still operative and all disputes are resolved in CNSP's favor."