FCC admits some states, including California, can reverse its sweeping utility pole preemption

by Steve Blum • , , , ,

Even if a federal appeals court buys arguments made by the Federal Communications Commission and its good friends in the mobile telecoms industry, and allows last year’s preemption of local ownership of light poles and other municipal property in the public right of way to stand, it might not matter in California, or any other state “which regulates the rates, terms, and conditions for pole attachments”.

As it tries to defend its wide-ranging preemption against challenges being heard by a federal appeals court in San Francisco, the FCC filed another set of arguments last week saying its authority, at least as far as utility poles are concerned, comes from a particular section of the communications act of 1996. But it admits in its brief that its authority only exists “absent state regulation”.

When it passed the 1996 act, congress adopted a process that’s known as “reverse preemption”. It gave the FCC the job of regulating the use of utility property by telecoms companies, but allowed states to take the job back and do it themselves. Which California has been doing for decades.

Utility poles are one thing, street lights and traffic signals are another. But according to lobbyists and lawyers for the mobile telecoms industry, the FCC’s authority to set rules for every stick planted in the ground by a city comes from the same section of federal law that gives it the power to regulate utility poles.

Except, the FCC is saying, when a state, such as California, does it instead.

Oops.

The FCC already admitted to the court that it’s claim that cities and counties don’t actually own facilities they pay for and install is limited to situations where an agency also regulates the use of the right of way. Its defensible perimeter is even smaller now that it’s leaning on a section of federal law that bans it from interfering with state regulators, like the California Public Utilities Commission.