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White Plains Takes its Case to the Supreme Court

The New York city is fighting for the right to regulate its rights-of-way.

WASHINGTON, D.C. -- White Plains, N.Y., said it has filed a petition for certiorari to the U.S. Supreme Court, asking for a review of a previous decision reached by circuit court.

In TCG New York, Inc. v. City of White Plains, the Second Circuit struck down a White Plains ordinance regulating telephone companies' use of the city's right-of-way and rental payments associated with that use.

In its petition, the city argues that Section 253 of the 1996 Federal Telecommunications Act allows the city to control telephone company construction and maintenance activities in the city's rights-of-way and to charge rent for the use of the rights-of-way.

The Second Circuit overruled the city's action in a decision that continues a line of inconclusive and contradictory decisions interpreting local government authority under Section 253, said Miller & Van Eaton, a Washington, D.C.-based law firm that has been involved in a number of Section 253 cases at both the Federal District and Circuit Court levels.

The White Plains case, if accepted, would provide the first examination by the Supreme Court of Section 253, a highly litigated section of the '96 Act.

"The proper interpretation of Section 253 is important to both the national economy and the federal structure of our government," the city said in its petition to the Supreme Court, noting the Third Circuit Court's recent pronouncement that "Section 253 is quite in-artfully drafted and has created a fair amount of confusion."

The petition explains that the case "arose out of the efforts of White Plains to respond to new burdens created by" telephone companies expanding their facilities in the public rights-of-way after the 1996 federal legislation.

White Plains' petition argues that the case "offers the [Supreme] Court the opportunity to analyze Section 253 and to instruct the lower courts in its proper application."