Qwest, the same company that got Santa Fe's telecommunications ordinance struck down six years ago, is challenging a replacement ordinance enacted last month.

According to its complaint this week in U.S. District Court, the new ordinance would raise the amount Qwest pays the city five-fold — an unreasonable amount.

Qwest also claims the ordinance doesn't apply equally to all communications providers, that it unconstitutionally interferes with interstate commerce, and that the state, not the city, owns city rights of way leased under the franchise.

Qwest's lawyers want a judge to declare the ordinance "void and unenforceable against Qwest."

The Colorado-based company isn't the only critic of Santa Fe's new telecommunications ordinance, passed June 9 on a tie-breaking vote by Mayor David Coss.

Arthur Firstenberg, who is suing a west-side neighbor because he says electromagnetic signals from her iPhone, Wi-Fi and other electronic devices are making him sick, contends the ordinance as published doesn't include some amendments that city councilors passed by voice vote near midnight June 9.

For example, Councilor Chris Calvert's "amendment requiring the (city Historic Design Review Board) to approve antennas in historic districts is not there," Firstenberg wrote in an e-mail sent out Monday to others opposed to the installation of more wireless systems in town.

Calvert said Thursday that Firstenberg is "stating things like they are facts," but he agreed that one amendment endorsed by him and other councilors in the "chaos" of the June 9 meeting was aimed at requiring Historic Design Review Board approval for any "telecommunications facilities" in historic districts.

Firstenberg also maintains that in contrast to the last-minute changes, the published ordinance allows antennas to be placed on private easements, allows new towers in all residential and historic districts, even where underground utilities are required by covenants, and allows three-year construction forecasts to remain trade secrets.

At Wednesday's City Council meeting, Councilor Matthew Ortiz, chairman of the city Public Utilities Committee, asked City Attorney Geno Zamora to compare the minutes of the June 9 City Council meeting with the published ordinance.

Zamora said Thursday that legal staff's initial review of the published ordinance found no discrepancies with the amendments. He called Quest's decision to sue the city "unfortunate" but said the legal staff is reviewing the complaint.

Qwest's complaint says it used to pay the city a franchise fee of 2 percent of its Santa Fe revenues, plus about $100 per permit to install facilities in pubic rights of way. In 2000, the lawsuit says, the city attempted "massive increases in its permit fees" that were struck down by the 10th U.S. Circuit Court of Appeals in Denver in 2004.

Now, the recent complaint says, the city again is trying to increase its franchise fee to 3 percent and impose an "onerous" $2,500 application fee for each permit location — increasing Qwest's total annual obligation from about $190,000 to up to $1 million.

"The City has conducted no study or analysis to support these massive fee increases," says the complaint, drafted by lawyers Richard Alvidrez of Albuquerque and three Denver lawyers, including Qwest's senior counsel. "In fact, the City has not even attempted to quantify the financial impact of its new provisions. ...

"Rather, City councilors and other representatives have candidly admitted that the purpose of the new fee provisions is to generate revenue for the City, in whatever amount that proves to be. ... The fee increases will substantially add to Qwest's cost structure and materially inhibit its ability to provide services at (prices) affordable to its customers."

The new telecommunications ordinance doesn't apply equally to competitors providing "telecommunications and data services over cable or wireless facilities," says the complaint. "By imposing these revenue-generating fees on just one type of provider while exempting others, the City has created a substantial competitive imbalance."

The complaint also says that public rights of way within city limits belong to the state, not municipalities, so the city "has no inherent right to assess franchise fees." State law allows cities to grant franchises to utilities for the use of rights of way, but it "does not allow cities, in the process of granting franchises, to assess franchise fees as a revenue-generating mechanism," the complaint says.

Contact Tom Sharpe at 986-3080 or tsharpe@sfnewmexican.com.