FCC’s local pole preemption order based on speculation, ignores substantial evidence, cities tell appeals court

by Steve Blum • , , , ,

The Federal Communications Commission’s preemptions of local property rights – particularly city-owned street light poles – and local rules regulating the use of public right of ways are contrary to federal law and violate the federal constitution, according to arguments submitted to a San Francisco appeals court by dozens of cities, counties and local government associations. In their opening brief submitted on Monday, they made their case for overturning last year’s FCC rulings that swept away state and local land use, road maintenance, property leasing practices and other policies that mobile carriers find bothersome.

The two FCC rulings affect wireless and, to a more limited extent, wireline telecoms providers. All the challenges that resulted were consolidated into a single case that’s now in front of the ninth circuit federal court of appeals.

The local governments’ argument that the FCC’s wireless and wireline rulings are “arbitrary, capricious and counter to the evidence in the record” boil down to two key points:

  • Federal law says state and local governments can’t “prohibit or effectively prohibit” deployment of telecommunications services. Courts – including the ninth circuit – have previously ruled that “an ‘effective prohibition’ may not be based upon the mere possibility of prohibition – an actual prohibition is required”. Local regulations and fees that might make a particular small cell site less convenient or less profitable for a carrier are not a prohibition.
  • “Nothing in the Communications Act gives the Commission authority over non-carrier government property merely because it is convenient to communications providers, or requires a locality to take affirmative action to assist in deployment, either through making its property available, or making it available cheaply”.

The FCC’s claim that it is helping rural communities by preempting urban property rights is equally bogus, according to the local governments’ brief

If a provider obtains reaps greater profits in San Francisco, Eugene or New York City as a result of preemption of those cities’ current right-of-way or infrastructure attachment fees, those increased profits do not make it more attractive or profitable for the provider to invest in deploying infrastructure in rural Mississippi. The Commission’s order does not require any amount of additional profits resulting from the preemption of San Francisco’s or Eugene’s fees to go towards providing service in other areas. Providers are free to use such additional profits to engage in corporate acquisitions, increase shareholder dividends, or repurchase stocks, which the record shows they have done rather than invest in deployment.

The joint arguments filed by local governments, as well as opening briefs filed by mobile carriers and municipal electric utilities, are just the first round in what will what will be months of litigation.

Petitioner Local Governments’ joint opening brief, 10 June 2019
Brief of petitioner the American Public Power Association, 10 June 2019
Petitioner Montgomery County, Maryland’s opening brief, 10 June 2019
Joint opening brief for Petitioners Sprint Corporation; Verizon Communications Inc.; Puerto Rico Telephone Company, Inc.; and At&T Services, Inc., 10 June 2019

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

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.