Local challenges to FCC streetlight preemption order move ahead

by Steve Blum • , , , ,

Charlottesville streetlights

A federal appeals court commissioner has, for now, set a schedule that sorts out the various challenges to last year’s Federal Communications Commission decisions that preempted local ownership of streetlights and similar infrastructure, and put tight restrictions on how local governments manage public right of ways. Last week Peter Shaw, a commissioner for the ninth circuit federal appeals court in San Francisco, met with attorneys for local agencies and associations that are challenging various aspects of the order, and with lawyers for mobile carriers that are pretending to be upset with the FCC’s decisions, but are actually jumping in on its side.

The result is a schedule that has the final round of written arguments completed in September, which could lead to a decision in 2020.

If.

If the San Francisco appeals court judges allow the cases to move ahead at all. They still have to decide if they’re going to grant the FCC’s request to put everything on hold until the commission gets around to closing out its proceeding.

It’s still a messy set of cases. A consensus statement filed before the case management conference by all the litigants tends to confirm the allegation that the FCC colluded with mobile carriers in a judge shopping play. The “industry petitioners” – AT&T, Verizon, Sprint and Puerto Rico Telephone Company – are lined up on the FCC’s side…

Some of the Small Cell Appeals were filed by local governments and publicly-owned utilities (the public petitioners), and separate appeals were filed by various providers of wireless services (industry petitioners). Their positions are in opposition, and industry petitioners, as well as certain intervenors, will support the FCC in opposing the public petitioners, and vice versa.

However, optimism about the case appears to be dying at the FCC. “It seems increasingly likely that the courts will return some part of our small cell infrastructure decisions back to this agency with a remand”, commissioner Jessica Rosenworcel wrote in a comment endorsing the FCC’s latest preemption attempt. Translation: it’s not looking good for our team.

A schedule that gets the initial legal skirmishing out of the way by September is a positive step. The next question to answer is whether the FCC’s stalling tactics will succeed in derailing it.