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In the wake of a U.S. Court of Appeals rejection of the City of Berkeley’s bid to regulate telecommunications companies inside the city’s borders, one of the leading proponents of that regulation says that the issue should be dropped for now. 

“I don’t see a lot of hope in continuing an appeal to the United States Supreme Court,” City Councilmember Dona Spring said in a telephone interview this week. “It’s clear that the trend in these cases is favoring multinational corporations over the rights of citizens and of cities. The Congress, the legislatures, the presidency, and the judiciary are all coming under the control of these multinationals.” 

Last month, a three-judge panel of the Ninth Circuit Court of Appeals unanimously affirmed a 2003 district court decision ruling that two separate telecommunications regulations laws passed by the City of Berkeley were pre-empted by federal law. The Berkeley ordinances were aimed at a plan by Qwest Communications Corporation to provide expanded telecommunications capacity to the Lawrence Berkeley National Laboratory. 

“The district court ruled [in 2003] that the [Berkeley law] is preempted by the [Federal Telecommunications Act of 1996] because the ordinance imposed an onerous burden on telecommunications providers seeking entry into the telecommunications market in Berkeley,” the three-judge panel wrote in its January ruling. “The court held also that the . . . regulations that create this prohibiting effect do not merely regulate the City of Berkeley’s public rights-of-way but regulate the telecommunications companies themselves.” The judges said that Berkeley’s attempt to regulate telecommunications companies went against the federal telecommunications law, which precluded “states and municipalities from passing laws that ‘prohibit or have the effect of prohibiting the ability of any entity’ from providing telecommunications services.” 

“We have interpreted [the federal Telecommunications Act] to be clear and ‘virtually absolute’ in restricting municipalities to a ‘very limited and proscribed role in the regulation of telecommunications,’” the appeals court concluded. 

A spokesperson in the office of Berkeley City Attorney Manuela Albuquerque said that the city attorney would discuss the court’s ruling in closed session with the City Council next Tuesday. The spokesperson said Albuquerque could make no further comment on the issue until then. 

Meanwhile, Councilmember Kriss Worthington, who opposed the Berkeley telecommunications ordinance when it originally came up for council vote, said that the Berkeley law “was patently illegal,” and Council “should have listened to me. Only once or twice a year do I say that the city attorney’s advice is wrong. I said it this time.” 

The Berkeley ordinance grew out of a 1999 contract between Qwest and the Lawrence Berkeley Lab to beef up the lab’s telecommunications facilities. As part of this contract, Qwest requested permits to dig trenches under city streets to lay conduit lines between Qwest’s central facilities and the lab. 

In the summer of 2000, in the midst of negotiations over permits for the trench digging, the City Council declared a moratorium on telecommunications infrastructure work within the city. In December of that year, City Council passed a telecommunications ordinance calling for stiffer fees and regulation of telecommunications construction in the city. That was followed by a period of legal maneuvering in which Qwest won a federal injunction preventing the city from enforcing the ordinance, and City Council passed a second ordinance in an attempt to clean up the court’s concerns about the first ordinance. Qwest sued the city, winning in federal district court in 2003, and setting up the city’s appeal to the Ninth Circuit. 

Councilmember Worthington sees the ordinance and appeal as a waste of the city’s time, even if they were in service of what the councilmember feels was a good cause. 

“They were trying to do something noble,” Worthington said, “getting a telecommunications corporation to mitigate its impact on the city of Berkeley. I’m all for that. If they can be made to pay their fair share, then send them a bill.” 

But Worthington said he felt the ordinance was doomed from the start, and said he backed up that view by passing out to fellow Councilmembers the opinions of several attorneys, all of whom Worthington said agreed that the ordinance would probably be disallowed. 

“I can’t think of a single Democratic federal judge who would have sided with the city on this,” Worthington said, “much less the Republican ones who now dominate the judiciary. I wouldn’t have even minded using a fight in court to raise public awareness to help change the federal law. But doing this all so quietly—as the city did—didn’t make any sense under any circumstances.” 

For her part, Councilmember Spring feels the Appeals Court ruling doesn’t bode well for Berkeley in trying to control what corporations can and cannot do inside the city limits. 

“The court has denied local jurisdictions the right to regulate trenching operations,” she said. “That means corporations can come in and dig up streets at will, and cities are in a very weak position trying to deal with the problems. We shouldn’t have our streets torn up without adequate compensation.”