FCC illegally “asserts federal control over municipal utility structures”, court told

by Steve Blum • , , , ,

The City of San Jose briefly explained its case against the Federal Communications Commission in a filing with the federal appeals court in Denver last week. San Jose, Los Angeles County and eighteen other western cities joined together to challenge the FCC’s decision to preempt local ownership of streetlights, traffic signals and other municipal property that’s located in the public right of way.

Six other challenges were filed – two by local agencies and associations that represent them, and four by mobile operators who think the FCC wasn’t generous enough. The cases were lodged in several different federal appeals courts around the country, and then were consolidated, via a lottery, in the tenth circuit court of appeals in Denver.

AT&T’s appeal was filed in Washington, D.C. but wasn’t included in the first round of consolidation. Last week, the FCC asked that it be moved to Denver, too, and AT&T didn’t oppose the request.

San Jose told the court…

On Sept. 26, the Federal Communications Commission issued a Declaratory Order and Report and Order…that, among other things: reinterprets key statutory terms…and which establishes new deadlines for action on applications for “small wireless facilities.” Many local governments, including Petitioners, objected to the FCC’s proposals on both legal and policy grounds, and submitted substantial legal, economic, and policy evidence into the underlying record never addressed by the agency.

Among other things, the Order abrogates an en banc plain language decision of the Ninth Circuit interpreting [those key statutory terms]; requires states and localities to lease facilities not generally dedicated to public use to certain wireless companies at out of pocket costs…asserts federal control over municipal utility structures; shortens time for action on wireless applications in a way that is designed to prevent public participation; and sets a federal standard for aesthetics without authority. Petitioners dispute the ruling on statutory and constitutional grounds, and also argue that it is, inter alia, arbitrary, capricious, an abuse of discretion and otherwise contrary to law.

The second group of cities and other organisations, which is led by the City of Seattle, hasn’t offered its initial argument yet, nor has the City of Huntington Beach, which launched a solo appeal.

Verizon, Sprint and Puerto Rico Telephone have, though. Verizon’s litigious trolling is typical, claiming that the FCC completely blew it because it didn’t go far enough…

The FCC’s refusal to implement a “deemed granted” remedy is arbitrary and capricious in violation of the Administrative Procedure Act, and is an abuse of the Commission’s discretion. It also violates other federal laws including, but not limited to, the Communications Act of 1934, the Commission’s own regulations, and the United States Constitution; and it is otherwise contrary to law.

AT&T’s initial filing made a similar claim, so it’ll be no surprise if it follows Verizon’s lead. The federal appeals court in Denver hasn’t set a schedule for further proceedings yet.

The FCC’s order is scheduled to take effect on 14 January 2019. The logical next step for the municipal challengers is to ask the court to put it on hold, until the cases are heard.

Links to petitions, court documents and background material are here.