Whether the Sixth Circuit properly held, in conflict with the Oregon Supreme Court, that a fee which is consistent with the Cable Act's only express provision limiting state or local fees and taxes on cable operators is nonetheless preempted, based on its conclusion that other provisions of the Act grant cable operators, 'by implication,' a federal right to provide non-cable services over local rights-of-way subject only to a cable revenue-based fee

QUESTION PRESENTED The federal Cable Act requires cable operators to obtain a local franchise to provide cable service and imposes specific limitations on cable franchising, including limiting “tax[es], fee[s] or assessment|[s]” imposed on cable operators “solely because of their status as such” to five percent of gross revenues derived from the cable system’s operation to provide cable service. 47 U.S.C. § 542. Otherwise, local and state authority is preserved; only laws “inconsistent with” the Act are preempted. Id. § 556(c). The City of Eugene, Oregon, requires all companies with facilities in the public rights-of-way, including cable operators, to pay a seven percent fee on broadband and other non-cable service revenues. The Oregon Supreme Court and the Sixth Circuit agree, contrary to a Federal Communications Commission ruling, that this fee is not based solely on a cable operator’s “status as such” and is not preempted by Section 542. Nevertheless, in conflict with the Oregon Supreme Court, the Sixth Circuit construed Sections 541(a)(2) and 544(b)(1) of the Cable Act to grant cable operators, “by implication,” a federal right to use rights-of-way to provide non-cable services, subject only to Section 542’s cable revenue-based fee; it therefore preempted fees like Eugene’s. The question presented is: Whether the Sixth Circuit properly held, in conflict with the Oregon Supreme Court, that a fee which is consistent with the Cable Act’s only express provision limiting state or local fees and taxes on cable operators is nonetheless preempted, based on its conclusion that other provisions of the Act grant cable operators, “by implication,” a federal right to provide non-cable services over local rights-of-way subject only to a cable revenue-based fee.