In August of 2019, the Federal Communications Commission (FCC) published its Third Report and Order, effectively truncating local franchise authority for the purposes of promoting broadband deployment. Former FCC Chairman Ajit Pai argued that by revising the in-kind contribution provisions, cable companies would be able to invest more into internet services and build out critical broadband infrastructure.

Cities across the nation, and certainly throughout the state, were forced to reconcile with the dramatic inequalities in access to broadband when the COVID-19 pandemic hit. Chairman Pai’s theory of “trickle down broadband” proved to be inaccurate: cable companies used their increased revenue to build broadband infrastructure in communities that could pay the most, not in the communities that were in dire need of broadband connectivity.

Shortly after the Third Report and Order was filed, the City of Eugene, Oregon was joined by several other municipalities throughout the United States in bringing a petition against the FCC. The Court agreed with the FCC that franchise fees could include noncash exactions, like free or discounted services. The values of these services, the Court ruled, were subject to the five-percent cap on in-kind contributions. The FCC’s Order went into effect in September 2020.

However, the change in presidential administration has brought new appointments to an array of federal agencies, including the FCC. Upon Chair Jessica Rosenworcel’s appointment in late January, the FCC issued a request to pause the franchise fee case. Chair Rosenworcel described the pause as routine to the change of agency leadership; the temporary pause would allow the agency to consider how to proceed—including whether to revisit some or all of the actions taken in the Third Report and Order.

In consideration of the FCC’s request for abeyance, the court asked FCC and the petitioners whether they were willing to move to dismiss the appeal. However, the Internet and Television Association (NTCA) stated that even if the petitioners were to withdraw their case, legal questions regarding franchise fee agreements would remain in uncertainty. Consequentially, the Court denied the FCC’s request to pause arguments. The case will resume hearing arguments on April 15.