The cities, counties and related associations that are challenging the Federal Communications Commission’s decision to preempt local ownership of streetlight poles and similar municipal property in the public right of way are asking to move the case from Denver to San Francisco. A motion to that effect was filed yesterday in the Denver-based tenth circuit court of appeals by the City of San Jose and the other west coast agencies that appealed the FCC decision in the last week of October.
Mobile carriers also challenged the ruling, because they didn’t get everything they wanted. And – likely – because they didn’t want the case heard in San Francisco’s ninth circuit court of appeals, which is not their home turf, to say the least. Under court rules, when multiple appeals of a federal agency’s action are filed in different appellate districts within 10 days of its publication, a lottery is held to determine where they will be consolidated. Denver won the draw.
But San Jose and its cohorts found a wrinkle in the law. They argue that the 10 day clock starts running when the first appeal in a given agency proceeding is filed. The City of Portland appealed an earlier FCC wireline ruling two weeks before the local agencies and mobile carriers went to court to challenge the wireless ruling. The wireline and wireless rulings were part of the same proceeding: as case law cited by San Jose puts it, both “are associated with the same dockets, arise out of the same administrative proceeding, and govern aspects of a single agency undertaking to implement…provisions in the Telecommunications Act of 1996”.
All the cities and counties involved are in the ninth circuit’s vast western territory. In the past, the San Francisco court has interpreted federal telecoms law more narrowly, and more in line with municipal interests, than the Denver appeals court. It makes sense for them to try to get the case moved.
The mobile carriers and the FCC will have a chance to argue against the transfer, and it’s a fair bet they will. A decision on San Jose’s motion will likely come quickly from the Denver court – there’s not a lot of time left before the FCC’s wireless preemption ruling takes effect on 14 January 2019 and, whether it’s in Denver or San Francisco, there’s a lot of legal work to be done.
City of San Jose, et al, motion to transfer cases to ninth circuit, 29 November 2018.
City of Portland’s petition for review of FCC wireline order, 2 October 2018.
FCC report and order and declaratory ruling, In the Matter of Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment and Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 2 August 2018.