Cities, counties tell FCC that local property rights are beyond its authority

by Steve Blum • , , ,

With the Federal Communications Commission set to vote tomorrow on new rules it wants local governments to follow when issuing permits for “small wireless facilities”, support and opposition is flooding in from the usual directions. CTIA, the primary lobbying front for mobile carriers in Washington, D.C., met behind closed doors with all four commissioners last week (the fifth seat, formerly occupied by Mignon Clyburn, is vacant, awaiting confirmation of a democratic nominee, Geoffrey Starks).

In its legally required disclosure statement, CTIA “applauded the commission” for giving industry lobbyists pretty much everything they could possibly ask for. At least they’re being gracious about it.

Local governments, on the other hand, are not happy and dozens have signed onto to letters opposing the sweeping preemptions of local authority and property ownership that the FCC is proposing.

The City and County of San Francisco pointed out that an analysis done by Corning, a major industry vendor, that the FCC uses to back its assertion that high fees in urban markets will suck capital investment away from rural areas, doesn’t really say that…

Tellingly, the Corning model predicts that only a negligible amount of additional investment will occur in urban areas if pole application and access fees are lowered. Consequently, there is no basis for concluding that the Proposed Order will increase investment in rural areas or anywhere else.

A coalition of local government lobbying groups, including the National League of Cities and the National Association of Counties, said that the FCC doesn’t have the authority to tell states they don’t own and can’t control their own property, such as street light poles…

The Local Governments reject the premise that the Commission has the authority dictate the rates charged by municipalities for public property, or has the need to intervene on behalf of the wireless industry that has ample resources and leverage to negotiate reasonable compensation.

Referencing state small cell bills to support these caps is a non sequitur. The FCC’s authority over municipal rights of way is not comparable to that of the states. To the contrary, federal law has consistently preserved local rights of way authority from intrusion by the federal government. Purporting to follow the lead of state legislators not only ignores this long-standing Congressional intent, but also ignores the more than thirty states that did not enact legislation to address small wireless facilities, or opted not to impose fees caps in that legislation. Finally, it mistakenly assumes the Commission can or should substitute its judgement for that of state elected officials.

The joint letter also sets the stage for the inevitable court challenge. There’s a long road ahead before the FCC’s pending diktats have any practical effect.

Among my other sins, I assist local governments with wireless policy and lease negotiations. I’m not a disinterested commentator. Take it for what it’s worth.