FCC preempts local property rights, gives street light poles to wireless companies

by Steve Blum • , , ,

Cities and counties shouldn’t take more than 60 days to process a permit to allow a wireless company to attach equipment to an existing structure, or more than 90 days if building a “small wireless facility” requires installation of a new pole or tower. That was the unanimous vote of the Federal Communications Commission yesterday. Democrat Jessica Rosenworcel joined her three republican colleagues and endorsed that particular section of an FCC ruling that also preempts local ownership of property that wireless companies might covet.

The rest of the decision, which gives wireless companies virtually unlimited access, at giveaway prices, to city and county-owned assets located in the public right of way, was approved on a party line vote. That permission specifically includes street light poles and traffic signals. Local aesthetic requirements are sharply restricted as well.

In her dissent, Rosenworcel called the decision overreaching and irresponsible

Three unelected officials on this dais are telling state and local leaders all across the country what they can and cannot do in their own backyards. This is extraordinary federal overreach.

I do not believe the law permits Washington to run roughshod over state and local authority like this and I worry the litigation that follows will only slow our 5G future. For starters, the Tenth Amendment reserves powers to the states that are not expressly granted to the federal government…

In addition, this decision irresponsibly interferes with existing agreements and ongoing deployment across the country. There are thousands of cities and towns with agreements for infrastructure deployment—including 5G wireless facilities—that were negotiated in good faith. So many of them could be torn apart by our actions here. If we want to encourage investment, upending commitments made in binding contracts is a curious way to go.

The final version of the ruling hasn’t been released yet, but there was no mention of any substantive changes from the draft published three weeks ago. It’s not a direct order to local governments – the FCC doesn’t have that authority, despite its rhetoric – but it does set out narrow guidelines that it expects federal courts to follow if mobile carriers start filing lawsuits challenging local lease contracts and permit requirements.

It’ll probably be three or four months before the FCC’s vote takes whatever effect it has. The Trump administration has to review it, which typically takes two or three months. Then it’s published in the Federal Register and comes into force a month after that.

That’s assuming it’s not blocked by a federal appeals court. A legal challenge was promised by the U.S. Conference of Mayors, which said the FCC’s action “misapplies federal law to federalise local public property as part of its efforts to bestow upon a class of private companies special rights to access local rights-of-ways and public property”.

The National Association of Counties and the National League of Cities also slammed the decision. Their joint statement said “the FCC is overlooking its overall goals to ‘build on the commonsense reforms adopted in state legislatures and town councils across the country”.