FCC’s San Francisco broadband preemption appealed

by Steve Blum • , , , ,

San Francisco is taking the Federal Communications Commission to court. Again. On Monday, the City and County of San Francisco filed a challenge to the FCC’s preemption of its broadband access ordinance with the ninth circuit federal appeals court, also based in San Francisco.

The ordinance requires building owners to allow tenants to buy broadband service from the provider of their choice. Providers are able, under the ordinance, to use any available wiring inside the building that’s owned by the landlord to deliver such service. The FCC ruled earlier this month that San Francisco can’t tell an ISP that’s already using a given wire to deliver service that it has to share it with another ISP. San Francisco’s initial response amounted to duh.

But the ordinance is still under threat, because the FCC continues it’s look into the matter, and could preempt the whole thing. So filing a federal court challenge could be one way for San Francisco to head off any further FCC action.

At this point, San Francisco isn’t saying why it thinks the FCC is out of bounds, except to say it’s aggrieved and to make the ritual claim that the ruling is “arbitrary and capricious”…

San Francisco was party to and actively participated in the underlying proceeding before the FCC that led to the Order, and is aggrieved by the Declaratory Ruling part of Order within the meaning of [federal law].

San Francisco seeks review of the Declaratory Ruling part of the Order because it: (i) was issued in excess of the FCC’s statutory authority; (ii) is arbitrary and capricious and an abuse of discretion; and (iii) is otherwise contrary to law, including the United States Constitution.

San Francisco respectfully requests that this Court hold unlawful, vacate, enjoin and set aside the Declaratory Ruling part of the Order, and grant such other relief as this Court may deem just and proper.

Another ninth circuit case that San Francisco and a long list of other cities and counties are pursuing is the challenge to last year’s preemption of local pole ownership and public right of way control by the FCC. Yesterday, the FCC ask for month’s delay in the case, which was summarily rejected by the ninth circuit. It’ll have to submit it’s reply to the case against it next month.