that this court understands it is that when quest tells you in its freeze ordinance sixty six thirty contains exactly the types of provisions that were struck down in auburn it is demonstrably categorically wrong auburn looked at in a series of factors that were troubling to the court in that context they included the existence of the franchising requirement in those cities ordinances obviously a franchising requirement forces telecommunications carriers to go out and essentially negotiate contracts with cities as a prerequisite to providing service in the public rights of way ordinance sixty six thirty has no franchising requirement and no licensing requirements it has a ministerial permit process whereby an athlete can't provide basic information what are you installing and where how much capacity will be left after the installation is complete what's your traffic control plan how are you going to discretion concerning the grant or denial of franchises the discretion involved in ordinance six sixty six i'm sorry sixty six thirty is so no one controversy allin this case that quest doesn't even treatment for cities like excess access to excess capacity like requirements that cities get in most favored nation status in the application of rates so those features are in order and sixty six thirty auburn required the production of a lot of non right of way paste information as part of the application process and a prerequisite to getting into the right of way this ordinance does not go through the application requirements in a moment to illustrate the point as clearly as i can auburn express concern about a long approval process in fact in telecommunications needs to be delayed in getting access to the right of way this ordinance does not this ordinance has a provision which says the permit shall issue promptly upon completion of an applications auburn was concerned about the public hearing requirements that were approved requisite to getting in the right of way this ordinance has no such public hearing requirements as a prerequisite to getting an  control over companies with facilities in the right of way that's now would you agree that there are provisions in this ordinance that don't have a thing to do with use of the right away even look more to controlling the company i would not agree with that your honor is going to tell me why the answer it this way if you're talking about section sixteen point eleven point zero seven zero of the ordinance and that provision allows the city to make one determination and one determination only and it's not governed in any respect west philippi to get access to the right of way determination that it's the silicates is does quest pay for access to the right of way on a fair market value basis for access or doesn't it say that's the only question that provision answers apartment is not challenge is invalid under section two fifty three that is the full sun and substance of sixteen thousand eleven point zero seven zero now if i could turn to why the city asked those questions that is a question of state  state law requires that common carriers the state wide franchises not be forced to pay compensation for the use of their right of way so the city is simply asking the question are the services that you provide common carrier services certification will eat your honor all these all these conditions do first of all again all it has to do is say no it gives itself access to the rights of way it can provide services in berkeley that has to pay compensation that doesn't challenge those compensation requirements that carrier status we don't have the power to do that and it's by the way it's not quest commentary or status and it's coming terry's status of the service is that quest provides all we're attempting to do is verify that quest is continuing to provide services on a common carrier basis so that we can know whether we're allowed to charge him rent for the use of the right of way or not and if qwest doesn't like that inquiry all it has to do is say no and pay and pay the compensation it's very simple if the the difficulty here for the city you're wrong is that there is a there is a federal and state regulatory structure that governs whether we can or can't charge compensation based upon the nature of the services provided and we are simply attempting to hav was that at that point in time when it was in it was adopted i believe in early two thousand and one you had huge proliferation of installation of telecommunications facilities and the right of way all kinds of practices that actually sense the slowdown in the economy are going on but the city was routinely getting its streets trenched up by multiple provide yes some of which by the way weren't even providing services they were just installing empty conduit underneath the streets to essentially land bank which is by the way the genesis of the question what common carrier services are you providing because if these facilities if these providers were dropping into the right of way with empty conduit then those providers should properly have to pay for that privilege because they're not offering a common carrier service indiscriminately to the public which is the very reason why congress and the state of california have seen fit to provide preferential access to providers that once applied indiscriminate services to the public so the purpose was the sixty six zero way of president and paul interpreting section two fifty three so the city took its best shot at trying to have a reasonable right of way management and faced ordinances that also didn't impose and reasonable burdens on telecommunications carriers telecommunications excavation permit is in section sixteen point eleven point zero six zero and i tell you the section number because you can read qwest briefs both below and on appeal and you will find they don't even challenge the discretion that is that is because they're essentially is not it's a ministerial permit process sixty six zero eight had public hearing requirements this ordinance as a prerequisite to getting in the right of way does not sixty six zero eight had a lot of nine right of way based information according to the court that was sought as part of the application process this ordinance does not sixty six away had a three tier permit in process there was registration of carriers that were in a right of way there was something called a special telecommunications permit and unless exempt there was a requirement that the parties engage in franchising or licensing all of that was stripped out of sixty six ways and sixty six thirty now has the process that i've mentioned probably seven times now one sixty six oh wait you cast to make an affirmative demonstration that you are a common carrier in order to be exempt from licensing or franchising that provision in sixty six away was entirely scrapped and sixty six thirty came back with an optional self certification protocol that no longer has anything to do with franchising or licensing and answers once again on the question is will question or won't quest pay compensation so it's auburn in sixty six so wait don't provide guidance on what's wrong with sixty six thirty then i'm going to look to portland with in portland you made a fairly clear statement about what constitutes a violation of section two hundred fifty three yet you said to determine whether preemption exists under two fifty three  were relevant and you called them from the auburn decision one the nature of the franchise application process now i'd like to talk about that application since this is what it takes to fill out a franchise up application and get access to the right of way  least of the identity of the applicant to engineering plans and specifications detailing the nature and location of the equipment to be installed this is basic you have cable in the ground gas electricity you have all kinds of he's in the ground knowing where they are is integral to being able to manage the rights of way three if you're using above ground facilities and quest is not proof that there's access available on the poles to install your facilities for if you're using  xisting underground docks then indication of how much capacity exists pre and post installation why does the city ask this question because the city isn't looking to have serial retrenching of the streets it results in street degradation safety issues and traffic control issues all we want to know is how much space is left so that when the next applicant comes in we can tell them you don't have to retrench our streets again for if you're installing new deck new docks we want to know otherwise have authorization to do this as you know and after auburn the city's role in the regulation of telecommunications providers in your words is very narrow insists your contract that therefore the city asks the simple to take umbrage with in its briefs other and further information related to the public rights of way the words related to the public rights of way are written right into the ordinance that was a change that was made on account of the district court's decisions on ordinance sixty six away and why is there a narrow catchall for vision because there are different geographic considerations with each installation there are changing technologies there are different technologies and if every time we realized we needed a new piece of information we had to amend the ordinance it would actually slow down the process of permits so it's it's eminently reasonable so ultimately with where does that take us it takes us to get three other factors from the portland decision that you considered relevant to today were the requirement to detain a franchise which doesn't exist here the threat of penalties for failure to obtain a franchise since there's no franchise requirements or no penalties for it there is a penalty for vision in the ordinance like there is for every provision of the city's unic code which simply a gives the city an enforcement device but there's nothing controversial about that so long as the underlying requirements that are being forced or otherwise alex and finally the discretion the city reserved to grant tonight the franchise well there is studies or other descriptions of things going on the facts of the legal requirements that are the subject of a petition if it's looking for evidence of that quest hasn't given that they gave you a statement for a month from an employee who said because of the uncertaint nothing at all to do with the ordinance fifty six thirty and they gave you testimony from a city employee about how in question use the common carrier exemption process process was onerous i say common carrier exemption because the city employee was talking about ordinance enjoined ordinance sixty six zero eight and within three weeks the berkeley passed this new ordinance sixty six thirty the real intent of this ordinance in the certification and recertification procedure which by the way is mandatory question comply was to provide a mechanism for the city of berkeley to charge rents and right of way fees if the city determined that when that quest was not offering services on a common carrier basis that's what's going on here so that the district court judge can join sixty six zero eight and says you're acting be on your narrowly prescribe role in managing the rights of way you have no business regulating the company preemptive yes it is why how does not prohibit you get it is a telecommunications or well a couple of responses first of all it is a classic case of a city stepping beyond the proper role of the city and narrowly managing the rights of way we have no problem with the city attaining reasonable permits having reasonable permit requirements paying cost face fees but when a city says you have to show us annually that you are offering services on a common carrier basis how complicated is that very complicated it's very complicated if you look at the list is judge nelson was was focused on the common carrier exemption procedure submission includes all of the services proposed to be offered all government approvals including without limitation the approvals required by the california environmental quality act approve of compliance with tariffs or deteriorating requirements public disclosure to the city and the public of all the material terms and any and all agreements tariffs or other documents relating to the terms and conditions for the provision of service evidence about the construction related to the right of way on a common carrier basis a warranty to the city that qwest will satisfy all common carrier provisions and then an annual recertification that's also mandatory that requires all information a certification that all information in the initial certification is valid in true subject to penalty of perjury current rate information sounds like sarbanes oxley it does your honor the name and address of every person and entity denied service by qwest true and correct copies of all contracts affecting any transfer of ownership operation control of facilities or any portion of sillies without limitation never member all subject to a certification that this is true and correct under penalty of perjury a right of audit the city has to go in and audit the books of the company that pertain to ownership california public utilities commission now there is good sense in that no city to my knowledge and i've been doing these kinds of cases for five years now and no city has attempted to do it berkeley is doing here to my knowledge imagine if qwest is building a loop through oakland berkeley and san francisco all of the cities are attempting to determine whether qwest is offering service on a common carrier basis is it really the city's position that question comply with whether the c p u sees certificate of public convenience is valid what if oakland and berkeley disagree are we going to have a trial in federal district court before judge bilston about whether or not the the certification valid there is an appeal process at the f c c and see if you see if if the city has concerns but the answer is it's clearly not to give any city state a right to regulate qwest corporation and that's precisely what this does this is not right of way management it's regulation of the company and it's both legally and practically impossible i want to address just for a moment the permit requirements but you know it's not our position that sixty six thirty is exactly like the ordinances struck down in city of auburn that sort of certainly is not nor is it exactly like sixty six zero eight but sixty six thirty like sixty six zero eight miss the point that not only has the city in nearly circumscribed a limited role limited to management of the rights of way but it also has to be sure that  fulfills that role in a way that is not burdensome to the company judge mckeown made that point very clearly in city of auburn that burden some application process season permit process sees a lengthy detailed prophec go too far and are stricken down preemptive as a matter of law if you look at the permit application the contents this is for an excavation so quest wants to go out and fix a line or pour install some conduit on a corner it has to go through number one two a b c d three four eighty five eighty six seven eight nine and then at the end of the day for each and every permit other and further information relating to the right of way use as you may reasonably be required by the city with no specification in writing as to what that might entail is violation of this mandatory requirement yes or give rise to  agree and so this issue on the on the excavation permit is really not a question of whether the city has a right to require a permit it's how they're going about it's it's a question of going way too far i mean when you look at this around somewhere absolutely or are there there are many quest quest complies with permit requirements day after day after day many cities have a simple excavation permit requirement you come in you see the city clerk you tell them you want to build on fourth cherry you pay a permit feed it covers the city's cost and you walk out with the permit you tell them where you're placing your facilities you send out people to make sure that you're not cutting water lines and power lines and you go forward this is not that and what judge alston is saying and this ordinance sixty six thirty is you just don't get it berkeley if you don't get it it's not your goal to go this far permit yes but not with nine subsections that end with the city manager can require anything more that they  want and if you fail to comply with the mandatory requirements you're subject to criminal penalties so quest is put in this case and you know the irony of these two cases game heard back to back and your honor i feel i've had the opportunity of litigat g many of these cases including santa fe portland city of auburn the portland henri man the irony of this is that this ordinance is bad enough the common carrier certification procedure is a disaster this pales by comparison to the tucson ordinance if you look at the tucson ordinance the provisions in that ordinance built largely on the right of way management that the final point i would make about the the form of decision this week this court might make here is this judge tells confound the first of all i went in on a twelve c motion following the guidance of avance if you can decide this is a matter of law the ordinance goes too far she said no i want to allow for discovery we had extensive discovery as we have been in tucson in many cases and it was heard on cross cross motions for summary judgment she found two things she found number one it's not your role berkeley and number two there is no evidence in the record that these services are not offered on a common carrier basis the city's on thirty six witnesses acknowledge that the quote of that testimony very important i think that the court's decision if the court affirms judge alston focuses on the more fundamental of the two issues because if this court rules that the evidence was not sufficient to raise a question of fact as to whether or not these are common carriage services i fear that other cities will take heart from that and think that you know berkeley did have a role they just didn't have the evidence in that case i think it's important to question my client to say and adequate the city does not have a role here this is a matter of statewide everything i think i have to general points that i want to reinforce take it back three the first is in addition to not there not being any evidence that the requirements actually impose a burden on quest or any other providers ability to provide any telecommunications service we've demonstrated and i will repeat it is in our breeze at length that these are really right of way management  issues and mr goodnight can tell you about there being nine subsections ninety nine pieces of information that need to be provided as part of the application process frankly i don't see and i hope the court doesn't see how we can just count of the number of provisions and decide that that is a burden that violates federal law i think the work ought to be required and really the question that is left after all burn in portland which dealt with discretion that was too broad and issues that could as what if you say well look we've looked at all your stuff and even though everybody else agrees you're a common carrier we don't then we have a dispute i could but i can't forecast the future i hope all i can say is that federal and state law tell us what makes the difference whether these folks are a common carrier or not and qwest is offering to this court the position that we can't ask that question so we can't know how to regulate them here you can rightly always seems that you might be able to ask if but not in this way well i say and it doesn't it doesn't give anybody any guidance about what type of evidence would be required to make a showing in a section that you don't know what is you do with sixteen eleven to sixty in the district court the severability commission would you suggest to the district court you didn't we we did did that at the at the preliminary injunction stage we did that and the judge rejected it she said that as in the auburn organs that it would result in a swiss cheese approach to the ultimate ordinance but the fact of the matter is that it's sixteen when eleven point zero seven