February oral arguments set for appeal of FCC pole ownership preemption

by Steve Blum • , , , ,

Los angeles streetlight cell 1 23oct2019

We might know by next summer if local governments will be able to lease public property, such as street lights, at fair market rates to private wireless companies, or whether those rates will be capped at $270 per pole per year.

The challenge by cities and counties to the Federal Communications Commission’s preemption of local ownership of public assets in the public right of way, and control of the public right of way itself, will be heard in Pasadena in February. The San Francisco-based ninth circuit court of appeals scheduled oral arguments for 10 February 2020. The judge-shopping appeals filed by mobile carriers will be heard at the same time.

It should be possible to watch the arguments live via the ninth circuit’s website or watch a recording later.

There’s no particular deadline for a decision by the ninth circuit, but three to six months would be a reasonable guess. So maybe in the May to August time frame?

The ninth circuit is allowing a total of eighty minutes for arguments. Cities and counties will get 20 minutes to make their case. Often, allocated time is eaten up by questions from the judges. The FCC will have 20 minutes to defend its ruling, then mobile carriers get their turn and the FCC has another 20 minutes to respond.

One question that won’t be answered until shortly before the hearing is who is hearing it? The ninth circuit will choose a panel of three appellate judges, which might include some on temporary duty, to listen to arguments and decide the case among themselves. Usually, that ends up being the final decision, although appeals the losing side can ask that it be reviewed by all the judges assigned to the ninth circuit, and/or appeal to the federal supreme court. But historically, fewer than 1% of the ninth circuit’s rulings are taken up by the supreme court.