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."

ExteNet withdrew its wireless infrastructure appeal at the 2nd U.S. Circuit Court of Appeals. The 5G infrastructure company had challenged a district court’s July 29 ruling that granted summary judgment to Flower Hill, a village on New York’s Long Island (case 22-1764). The court on Friday certified that parties withdrew the case Thursday. The lower court agreed with Flower Hill that it could deny an application for 5G infrastructure where 4G coverage already existed. ExteNet declined to comment and Flower Hill attorneys didn’t comment.

Illinois' Cable and Video Competition Law (CVCL) doesn't give East St. Louis a right of action to seek video service provider franchise fees from streaming services, U.S. Magistrate Judge Mark Beatty of East St. Louis ruled Sept. 22, dismissing a putative class action complaint brought by the city. In the docket 3:21-CV-561 order Friday granting the streaming service defendants' motions to dismiss (see 2203290039), Beatty said CVCL explicitly says the state attorney general can institute a lawsuit for CVCL violations, but it doesn't say that local government units can do likewise. That the AG's office hasn't pursued a suit "does not somehow mean the statutory enforcement framework is an inadequate remedy," said the order. There was no oral argument, with Beatty in the order calling it "not necessary." The city didn't comment.