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Anti-Wi-Fi advocate: Telecom fee is an ‘unlawful tax’

December 13, 2016

Anti-Wi-Fi crusader Arthur Firstenberg wants a judge to overturn a new franchise fee levied by the city of Santa Fe against telecommunications service providers, who will pass the cost onto their customers.

Firstenberg asserts that the fee, which the City Council adopted in November, amounts to an “unlawful tax.”

“A municipality may only assess such a tax upon a majority vote of the electorate, unless otherwise authorized by law,” Firstenberg wrote in a complaint filed in state District Court.

Firstenberg, who famously sued his neighbor for more than $1 million on the grounds that her use of an iPhone and a Wi-Fi connection damaged his health, declined to comment Monday.

Assistant City Attorney Marcos Martinez also declined to discuss the matter, saying the city generally doesn’t comment on pending litigation. But in city documents presented to the mayor and councilors before they approved the franchise fee for access to public rights of way, Martinez said such fees “are permissible under state and federal law.”

The ordinance unanimously approved by the governing body calls for a 2 percent fee “of all gross charges charged by telecommunications retailers to a service address in the city for telecommunications originating or received in the city.”

“The retailer shall charge each customer an additional charge in an amount equal to the infrastructure maintenance franchise fee attributed to the customer’s service address in the city,” the ordinance states. “This additional charge to customers shall, when collected, be stated as a distance item on the bill to each customer separate and apart from the retailer’s gross charges to its customers for telecommunications.”

Under the ordinance, retailers may retain 2 percent of the additional charges it collects “to reimburse itself for expenses incurred in connection with accounting for and remitting the fee to the department.”

A similar fee was the subject of litigation between the city and Qwest, the telecommunications company now doing business as CenturyLink. Qwest argued a city ordinance didn’t apply equally to all communications providers and unconstitutionally interfered with interstate commerce, among other claims. Qwest and the city settled the case last year.

As part of the agreement, the city extended CenturyLink’s franchise until Jan. 1, 2021, CenturyLink spokeswoman Shelley Bailey Silverman said recently in an email.

“The City agreed that subsequent revisions to the City’s franchise code would not apply to CenturyLink until this franchise expired,” she wrote.

Contact Daniel J. Chacón at 505-986-3089 or dchacon@sfnewmexican.com. Follow him on Twitter @danieljchacon.