FCC preemption of local pole ownership challenged by muni electric utilities

by Steve Blum • , , , ,

Municipal electric utilities joined the challenge the Federal Communications Commission’s decision to preempt local ownership and control of streetlights and other publicly-owned infrastructure in the public right of way. The American Public Power Association, which represents cities, utility districts and other public agencies that provide electric service, filed a petition in the federal appeals court in Washington, D.C. last week, asking that the ruling be overturned.

It argues…

In the Order, the Commission has improperly asserted regulatory authority and jurisdiction over the control and use of public power utility facilities. The Order exceeds the Commission’s statutory authority; poses significant risks to safe, secure, and reliable electric utility operations; and interferes with the proprietary rights of public power utilities to determine the terms and compensation for use of their utility assets by private wireless carriers.

That makes a total of eight challenges to the FCC ruling. Three were filed by western cities with objections that parallel the APPA’s; four by mobile carriers that want federal judges to give them everything they asked for, instead of the virtually everything they got from the FCC.

The City of Huntington Beach filed its obligatory and brief description of its case, stating…

The federal government cannot deprive a state or cities of their proprietary powers as owners of property…Localities, in their capacity as a property owner, have the “right to decline to lease the property except on agreed conditions.”

The group led by the City of Seattle submitted similar comments. The City of San Jose-led challengers filed their’s last week.

More challenges are possible (and might have already been filed – I’m not checking every circuit court every day). The deadline is the middle of next month, 60 days after the FCC’s ruling was published in the federal register. An earlier deadline – 10 days after publication – was for getting into the judicial lottery that determines which court of appeals will hear the case. That honor went to the tenth circuit court of appeals, based in Denver. Presumably, the APPA case will be transferred there, along with AT&T’s appeal, which was also filed in D.C.

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