FCC pole preemption appeals leave Denver via loophole, land in San Francisco

by Steve Blum • , , , ,

San francisco skyline 625

Update, 11 January 2019: the federal tenth circuit court of appeals denied a request by the City of San Jose and other cities to delay implementation of the FCC’s September preemption order. It is still scheduled to take effect on Monday.

The growing list of challenges to a Federal Communications Commission decision to preempt local ownership of streetlight poles and other municipal property located in the public right of way will be decided by the San Francisco-based ninth circuit federal appeals court.

Originally, the cases were assigned by lottery to the federal tenth circuit court, headquartered in Denver. But a coalition of local governments led by the City of San Jose argued an earlier appeal of a separate but related FCC order – aka the August order, which dealt primarily with wireline issues – should take precedence as the lead case. Yesterday, the Denver appeals court agreed that the FCC’s wireless deployment order, aka the September order, which took away any ownership rights cities might have over streetlight poles is inextricably intertwined with it…

After careful consideration, we conclude that the FCC’s August Order and its September Order are the “same order” for purposes of [federal law]. Accordingly, the motion to transfer is granted and these matters are transferred to the United States Court of Appeals for the Ninth Circuit.

It’s good news for cities, counties and other local agencies, and bad news for the unholy alliance of republican FCC commissioners and mobile carriers. In the past, the ninth circuit has taken a more narrow view of what qualifies as an effective prohibition on broadband deployment. That question is central to the case against the September wireless order: the FCC claims its authority to preempt local property ownership is based on a federal law that says that state and local governments can’t “prohibit or effectively prohibit” broadband companies from building infrastructure or offering service.

The decision to send the challenges – there are at least nine, encompassing dozens of local governments and organisations – to San Francisco could create a bit of a mess for the next few days. The FCC’s wireless order is due to take effect on Monday. One request to put the order on hold was filed in St. Louis, and similar motions are expected from other challengers. That’s a lot of work on short notice.

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

Order transferring appeals of FCC “September Order” to Ninth Circuit, by Tenth Circuit, U.S. Court of Appeals

My clients are mostly California cities, including some that are directly involved in this case. I’m not a disinterested commentator. Take it for what it’s worth.