FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

QWEST COMMUNICATIONS INC., 

Plaintiff-Appellee,

v.

CITY OF BERKELEY; CITY No. 03-15852

COUNCIL OF BERKELEY; WELDON D.C. No.

RUCKER, in his official capacity as  CV-01-00663-SI

Acting City Manager of the City OPINION of Berkeley; PHIL KAMLARZ, in his

official capacity as Deputy City

Manager of the City of Berkeley,

Defendants-Appellants. 

Appeal from the United States District Court

for the Northern District of California

Susan Yvonne Illston, District Judge, Presiding

Argued and Submitted

December 6, 2005—San Francisco, California

Filed January 12, 2006

Before: Stephen S. Trott, Thomas G. Nelson, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Trott

613
COUNSEL

Jeffrey T. Melching, Rutan & Tucker, LLP, Costa Mesa, California, for the defendants-appellants. 

David R. Goodnight, Stoel Rives, LLP, Seattle, Washington,

for the plaintiff-appellee. 

John H. Ridge, Stoel Rives, LLP, Seattle, Washington, for the

plaintiff-appellee. 

616 QWEST COMMUNICATIONS v. BERKELEY
OPINION

TROTT, Circuit Judge:

The City of Berkeley appeals the district court’s summary

judgment ruling that its Interim Telecommunication Carriers

Ordinance is preempted by the Federal Telecommunications

Act of 1996 (“Act”). The district court ruled that the Interim

Telecommunication Carriers Ordinance is preempted by the

Act because the ordinance imposed an onerous burden on

telecommunications providers seeking entry into the telecommunications market in Berkeley. The court held also that the

ordinance is not saved by the Act’s “safe harbor” clause

because the regulations that create this prohibiting effect do

not merely regulate the City of Berkeley’s public rights-ofway but regulate the telecommunications companies themselves. We come to the same conclusions as the district court

and, therefore, AFFIRM the district court’s judgment.

I

BACKGROUND

In 1996, Congress passed the Federal Telecommunications

Act. The full title of the Act is “An act to promote competition and reduce regulation in order to secure lower prices and

higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunication technologies.” As indicated by the title, the

purpose of the act was to reduce regulation of telecommunications providers by creating a “procompetitive, de-regulatory

national policy framework.” H.R. Rep. No. 104-458 (1996)

(Conf. Rep.). The Act was later codified in 47 U.S.C. § 253.

Section 253 furthers this de-regulatory purpose by precluding

states and municipalities from passing laws that “prohibit or

have the effect of prohibiting the ability of any entity” from

providing telecommunications services. 47 U.S.C. § 253(a).

This preemption is not absolute. Section 253 also includes a

QWEST COMMUNICATIONS v. BERKELEY 617
“safe harbor” clause that allows state and local government

“to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers” so

long as the management and compensation is done on a “competitively neutral and nondiscriminatory basis.” 47 U.S.C.

§ 253(c). 

In December 1999, Qwest Communications Corporation

(“Qwest”) won a competitive bidding process to provide

faster and expanded telecommunications capacity to Lawrence Berkeley National Laboratory (“LBNL”) located in the

City of Berkeley, California (“City”). In order to upgrade

LBNL’s telecommunications capacity, Qwest needed to

install a “local loop” between LBNL and Qwest’s central system. This involved laying a conduit through the City’s public

rights-of-way. From March through December 2000, Qwest

and the City negotiated and developed an acceptable construction plan to lay the conduit in the public rights-of-way. On

July 10, 2000, Qwest presented an application for the permits

necessary to begin work on LBNL conduits. However, on

July 25, 2000, the Berkeley City Council adopted Resolution

No. 60,729-N.S., declaring a moratorium on telecommunications infrastructure work with exceptions for emergency and

hardship cases. As a result, the City stopped issuing excavation permits for telecommunications infrastructure work and

Qwest was unable to obtain the necessary permits to begin

construction. 

On December 22, 2000, the City enacted Ordinance No.

6608-N.S. (“Ordinance 6608”) to regulate telecommunications companies and their use of the public rights-of-way. On

February 13, 2001, Qwest filed suit against the City arguing

in part that Ordinance 6608 was preempted under federal and

state law. Qwest also sought temporary injunctive relief. In

May 2001, the district court enjoined the City from enforcing

Ordinance 6608. Following the court’s ruling, the City passed

Resolution No. 61,102-N.S., adopting Ordinance No. 6630-

N.S. (“Ordinance 6630”) to replace Ordinance 6608. In

618 QWEST COMMUNICATIONS v. BERKELEY
response, Qwest amended its complaint to challenge Ordinance 6630 in addition to Ordinance 6608. On April 7, 2003,

the district court ruled that Ordinances 6608 and 6630 were

preempted by § 253. The City appealed the district court decision with regard to only Ordinance 6630. 

II

STANDARD OF REVIEW

The district court’s grant of summary judgment is reviewed

de novo. See Buono v. Norton, 371 F.3d 543, 545 (9th Cir.

2004). Thus, our review is governed by the same standard

used by the trial court under Federal Rule of Civil Procedure

56(c). See Olsen v. Idaho St. Bd. of Med., 363 F.3d 916, 922

(9th Cir. 2004). 

III

DISCUSSION

[1] Under the Supremacy Clause of the United States Constitution, Congress may preempt state law through federal legislation. U.S. Const. art. VI, § 2; Chicago & N.W. Transp. Co.

v. Kalo Brick & Tile Co., 450 U.S. 311, 317-18 (1981). Congress can preempt state law through legislation in several

ways. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).

One way is to expressly state an intention to preempt, id., as

Congress has done with § 253(a): “[n]o State or local statute

or regulation, or other State or local legal requirement, may

prohibit or have the effect of prohibiting the ability of any

entity to provide any interstate or intrastate telecommunications service.” See, e.g., Metrophones Telecomm., Inc. v.

Global Crossing, 423 F.3d 1056, 1071-72 (9th Cir. 2005). We

have interpreted this preemptive language to be clear and

“virtually absolute” in restricting municipalities to a “very

limited and proscribed role in the regulation of telecommunications.” City of Auburn v. Qwest Corp., 260 F.3d 1160, 1175

QWEST COMMUNICATIONS v. BERKELEY 619
(9th Cir. 2001) (internal quotation marks omitted). The narrowly circumscribed role is set forth in § 253(c). This “safe

harbor” clause permits state and local government control

over the use of the rights-of-way, so long as the control is

management of the rights-of-way itself and not control of the

telecommunications companies with facilities in the rights-ofway. Id. at 1177. 

A. Preemption: § 253(a)

Before considering whether Ordinance 6630 falls within

the “safe harbor,” we must determine whether the ordinance’s

regulations fall within the preemptive language of § 253(a).

The City argues Qwest failed to produce any facts showing

how any section or combination of sections of Ordinance

6630 does what § 253(a) precludes—prohibiting or having the

effect of prohibiting telecommunications services. Specifically, the City contends that Qwest must show the actual

impact of Ordinance 6630 on Qwest’s ability to provide telecommunications services. However, we explicitly rejected

this argument in Qwest Corp. v. City of Portland:

The district court noted that Qwest has not pointed

to a single telecommunications service that it, or any

other entity, is effectively prohibited from providing

because of the Cities’ revenue-based fees or any of

the other challenged requirements. We do not agree

that Qwest was required to make an actual showing

of a single telecommunications service that it . . . is

effectively prohibited from providing. We have previously ruled that regulations that may have the

effect of prohibiting the provision of telecommunications services are preempted. 

385 F.3d 1236, 1241 (9th Cir. 2004) (citations and quotation

marks omitted).

Consequently, rather than considering the actual impact of

Ordinance 6630, we must determine whether the specific reg620 QWEST COMMUNICATIONS v. BERKELEY
ulations of Ordinance 6630 “may have the effect of prohibiting the provision of telecommunications services” in the City.

Id. As explained below, the regulations of Ordinance 6630

have that prohibiting effect. 

1. Section 16.11.070

[2] Section 16.11.070 of Ordinance 6630 requires telecommunications companies using the public rights-of-way to pay

what the City refers to as a “non-cost based compensation

fee.” In Auburn, we stated that fees “not based on the costs

of maintaining the [public rights-of-way], as required under

the Telecom Act” contributed to a regulatory scheme that had

the impermissible effect of precluding telecommunications

companies from providing services. 260 F.3d at 1176. 

In Portland, 385 F.3d at 1242, we questioned whether this

language stood for the proposition that all non-cost based fees

would be automatically preempted. That questioning is reasonable based on the text and organization of § 253 that

require an individualized determination of whether the regulation prohibits or may have the effect of prohibiting the provision of telecommunications services before determining

whether the regulation is saved by the “safe harbor” clause of

§ 253. Thus, we decline to read Auburn to mean that all noncost based fees are automatically preempted, but rather that

courts must consider the substance of the particular regulation

at issue. 

[3] The City makes no attempt to assert that its non-cost

based fee is not the type of regulation that prohibits or may

have the effect of prohibiting the provision of telecommunications services. Instead, the City asserts that section 16.11.070

escapes preemption because it allows telecommunications

companies protected by § 253(a) to be excluded from paying

this fee by complying with the “common carrier exemption

procedure.” Ordinance 6630 § 11.16.070(D). 

QWEST COMMUNICATIONS v. BERKELEY 621
[4] However, the “common carrier exemption procedure” is

not a simple process. The City’s own witness described the

exemption as a “very exhaustive process” that requires the

applicant company to provide extensive information about the

company and the specific project. Although not identical to

the franchise application process in Auburn, the exemption

process in this case is similarly onerous and, therefore, has the

same discouraging effect. 

To begin with, section 11.16.070(D)(1) requires the applicant seeking exemption to identify its qualifications to provide telecommunications services and to certify that it is in

compliance with state and federal laws. This includes compliance with state environmental law as well as federal and state

tariffing and detariffing requirements. Section

11.16.070(D)(1) also requires the applicant to disclose to the

City and the public the material terms of “any and all agreements, tariffs, or other documents relating to” telecommunications services provided by the applicant. 

In addition, section 16.11.070(D)(2) requires the applicant

to provide the City with an annual written report that includes

the following information: (1) current rate information and

information regarding terms and conditions “upon the services being furnished on or over the facilities located within

the public rights-of-way;” (2) copies of all information made

available to the public pursuant to the tariffing, detariffing,

and related notice requirements of federal and state law,

including copies of all negotiated contracts related to the provision of telecommunications services; (3) the name, address,

and phone number of each person or entity to whom the telecommunications provider denied service, access to, or capacity over the facilities during the preceding year and reasons

for the denial; (4) copies of any contracts effecting the transfer of the ownership, operation or control of the telecommunications company’s facilities or systems. 

Finally, section 16.11.070(D)(4) requires that the applicant

allow the city “at any time, and from time to time, and upon

622 QWEST COMMUNICATIONS v. BERKELEY
reasonable notice” to audit the applicant’s books and records

to determine whether the applicant is “continuing to furnish

requisite” services in conformity with federal regulations “to

qualify for exemption from licensing, franchising, and related

provisions of [Ordinance 6630]” and whether the applicant is

acting within the scope of its certification. 

[5] These requirements, particularly when considered

together, are patently onerous and have the effect of prohibiting Qwest and other telecommunications companies from

providing telecommunications services. 

2. Sections 16.11.060 and 16.11.330

[6] The onerous nature of the regulations of section

16.11.070 is compounded by other sections. Section

16.11.060(B)(6) allows the City to deny an excavation permit

and thus the use of public rights-of-way if the applicant fails

to comply with any other requirement of the ordinance,

including the onerous provisions of section 16.11.070. Further, section 16.11.060 affords the City significant discretion

to deny companies the ability of providing telecommunications services. These provisions, which are similar to those at

issue in Auburn, contribute to an impermissible regulatory

scheme. See Auburn, 260 F.3d at 1178-79. 

[7] Section 16.11.330 similarly contributes to an impermissible regulatory scheme by allowing the City to impose civil

and criminal penalties for not complying with any requirement of Ordinance 6630. See Auburn, 260 F.3d at 1176.

When read together, sections 16.11.060, 16.1130, and

16.11.070 contribute to a regulatory structure that may have

the effect of prohibiting telecommunications companies from

providing services. 

B. Safe Harbor: § 253(c)

Because sections 16.11.070, 16.11.060 and 16.11.330 have

the effect of prohibiting telecommunications services, the

QWEST COMMUNICATIONS v. BERKELEY 623
ordinance falls within the preemptive language of § 253(a).

These regulations, however, will not be preempted if they

meet the “safe harbor” requirements found in § 253(c). The

City argues that even if Ordinance 6630 contains regulations

that have an impermissive effect, the regulations are properly

related to the City’s legitimate interests in public rights-ofway management and are, therefore, saved by § 253(c). This

argument misconstrues our case law interpreting § 253(c). 

[8] As set forth in Auburn, the phrase “manage the public

rights-of-way” means “control over the right-of-way itself,

not control over companies with facilities in the right-ofway.” Auburn, 260 F.3d at 1177. Proper management activities include “coordination of construction schedules, determination of insurance, bonding and indemnity requirements,

establishment and enforcement of building codes, and keeping

track of the various systems using the rights-of-way to prevent interference between them.” Id. at 1177 (quoting In re

TCI Cablevision of Oakland County, Inc., 12 F.C.C.R. 21396

(F.C.C. 1997), ¶ 103). In contrast, regulations requiring “the

applicant [to] submit proof of its financial, technical, and

legal qualifications do not regulate the public rights-of-way”

are impermissible. Id. at 1178 (internal citations and quotation

marks omitted). 

[9] Here, the City’s regulations identified in the § 253(a)

analysis are not saved by § 253(c)’s “safe harbor” because

they go to an applicant’s technical and legal qualifications

rather than the actual management of the public rights-of-way

itself. 

For instance, an applicant is required to identify its state

and federal qualifications and furnish annual documentation

that it provides telecommunications services and is in compliance with state and federal environmental and telecommunications law. Ordinance 6630 § 16.11.070(D)(1). The applicant

is required also to provide yearly documentation regarding

current rate information, tariffing, and detariffing, as well as

624 QWEST COMMUNICATIONS v. BERKELEY
copies of all contracts relating to the applicant’s provision of

services. Ordinance 6630 § 16.11.070(D)(2). If the applicant

violates these provisions, the City may deny the applicant an

excavation permit, effectively preventing the applicant from

using the public rights-of-way and providing services. Ord.

6630 § 16.11.060. Even after the applicant has been granted

access to the public rights-of-way, the applicant is subject to

having its books and records audited to ensure the veracity of

the applicant’s submissions regarding an applicant’s technical

and legal qualifications under federal and state law, with the

potential for criminal and civil penalties in the event that

something is inaccurate. These requirements do facilitate the

City’s control over the public rights-of-way but are attempts

to regulate and control the companies by requiring certification and documentation of their legal and technical status.

Following our reasoning in Auburn, we conclude that these

regulations are not protected by § 253(c) and are, therefore,

preempted. 

C. Severability 

[10] Ordinance 6630 contains a severability clause. Section

16.11.260 states that if any part of the ordinance is declared

invalid, the invalidity will not affect the permissible parts of

the ordinance. To determine whether this language is effective

and the invalid provisions of Ordinance 6630 are severable,

we look to state law. Leavitt v. Jane L., 518 U.S. 137, 139

(1996). Under California law, the presence of a severability

clause coupled with the ability functionally, mechanically,

and grammatically to sever the invalid portion from the valid

portions of an enactment ordinarily will allow severance but

only if the remainder of the enactment is complete in itself

and would have been adopted without the invalid portion.

Sonoma County Org. of Pub. Employees v. County of

Sonoma, 591 P.2d 1, 14 (Cal. 1979); Calfarm Ins. Co. v.

Deukmejian, 771 P.2d 1247, 1256 (Cal. 1989). 

[11] Here, it does not appear that the invalid portions of the

ordinance can be severed from the valid provisions of the

QWEST COMMUNICATIONS v. BERKELEY 625
ordinance without affecting the general functionality of the

ordinance. Removing the preempted regulations found in sections 16.11.070, 16.11.060, and 16.11.330 would result in a

disjointed and nonsensical fee exemption process, annual

reporting system, and certification process. 

[12] More problematic is whether Ordinance 6630 would

have been adopted by the City without the invalid portions of

the enactment. In Sonoma, the California Supreme Court gave

great deference to the purpose and design of the statute. 591

P.2d at 14-15. However, that purpose and design was constitutionally permissible. Id. Here, the stated purpose of Ordinance 6630 is to “more specifically regulate

telecommunications carriers providing telecommunications

and telecommunications services . . . .” This stated purpose is

impermissible and in direct conflict with the title and text of

§ 253. Thus, as we have disemboweled the portions of the

ordinance that accomplish this express purpose, there is no

evidence—even with the severability clause—that suggests

the City would have passed the Ordinance. Accordingly, we

decline to sever the invalid portions of Ordinance 6630.

CONCLUSION

[13] We affirm the district court’s order granting summary

judgment in favor of Qwest. Section 253(a) preempts Ordinance 6630 because the enactment contains regulations and

requirements that have the effect of prohibiting telecommunications companies from providing telecommunications services in the City of Berkeley. Furthermore, the offending

provisions are not saved by the “safe harbor” clause found in

§ 253(c) because they are not regulations that manage the

public rights-of-way, but regulations that allow the City to

manage the telecommunications companies themselves by

requiring the companies to certify and document their legal

and technical qualifications. We also determine that Ordinance 6630 is not severable. 

626 QWEST COMMUNICATIONS v. BERKELEY
AFFIRMED

QWEST COMMUNICATIONS v. BERKELEY 627