A new appeal of FCC’s local pole ownership preemption could come today

28 September 2020 by Steve Blum
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At least some of the cities that challenged the Federal Communications Commission’s preemption of local ownership and control of street lights and other government property installed in the public right of way are considering continuing the fight. Last month, three judges on the federal appeals court based in San Francisco – the ninth circuit, as it’s called – said the preemption is mostly within the FCC’s authority, although they trimmed back restrictions on local aesthetic requirements for wireless facilities.

Today is the deadline for asking the full ninth circuit – 29 judges – to take a second look at the decision.

According to a story by Andrea Noble in Route Fifty, at least some cities haven’t given up the fight…

“We are speaking with our clients right now about whether or not to do that,” said Gerry Lederer, an attorney with Best, Best and Krieger, who represents the National League of Cities and a coalition of cities and counties in the litigation.

But Noble reports that even if they don’t win, cities might have won on some important points…

While the ruling backs the FCC’s cap on fees that municipalities can charge (envisioned as a limit of up to $500 for application fees and $270 for annual fees), it “allows for a lot more flexibilities than cities think,” said Mark Del Bianco, a communications industry attorney…

“If someone spends the time to figure out what is involved, and all the resources, they will come up with numbers far higher than that,” he said.

“The 9th Circuit decision suggests cities do have the authority to access fees over and above safe harbor, they just need to justify it as related to costs,” said Angelina Panettieri, the principal associate for technology and communications for the National League of Cities.

It might be relatively simple to do that in California. State law already requires local governments to demonstrate that any fees they assess are based on actual costs, and there are established procedures for doing so. That might be – ought to be – enough to satisfy the FCC’s requirements.