Federal appeals court slows but doesn’t stop muni challenges to FCC wireless preemptions

by Steve Blum • , , , ,

Samsung small cell

The federal appellate court review of two Federal Communications Commission rulings that preempt local authority over wireless attachment and wireline excavation permits, and take away local ownership of streetlight poles and similar property will continue, albeit slowly. Yesterday, the ninth circuit court of appeals in San Francisco refused to ice the case completely, as requested by the FCC and as dutifully echoed by wireless carriers.

Instead, the court consolidated the twelve separate appeals of the September wireless attachment order into a single case, and assigned it to the same set of judges who will consider two appeals of the August wireline excavation order. A “special master” was given the job of sorting out the nuts and bolts of consolidating the twelve challenges to the wireless attachment ruling, and combining them with the two wireline excavation appeals.

The special master was directed to

Conduct a case management conference with the parties. The special master shall consider any issues he deems appropriate to manage the petitions effectively, including but not limited to the development of a briefing plan for the above-listed twelve petitions. The case management conference will be scheduled by separate order of the special master…

Proceedings in these consolidated petitions other than the case management conference are stayed pending the case management conference.

That means that the FCC won’t have to submit the records that its rulings were based on for now, giving it time to go through the motions of reconsidering those decisions. The ninth circuit will decide next steps after the case management conference is held and a plan for moving forward is proposed. The previously set 5 April 2019 date for (written) opening arguments was cancelled.

There are what amount to three interlocking cases in play. The cities, counties and associations challenging the September wireless order say that the FCC overstepped its authority in many regards, especially when it declared that municipal poles and other structures in the public right of way don’t belong to the agencies that installed them. The ones challenging the August wireline order make similar arguments about a blanket preemption of local rules regarding when telecoms companies can dig in the street, including seasonal restrictions – working on ice covered streets during spring freeze/thaw cycles, for example, can turn a nice stretch of asphalt into a dirt road.

The third case is a sham argument made by four wireless carriers – AT&T, Verizon, Sprint and the Puerto Rico Telephone Company – apparently in collusion with the FCC. The four corporate appeals were filed in different and friendlier appellate court districts, and initially succeeded in landing the case with presumably more sympathetic judges in Denver. They were not sympathetic enough though, accepting the argument made by the City of San Jose that eventually landed everything in San Francisco.

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.

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