The FCC will have a month to respond, then the challengers will have three weeks to file a final rebuttal. So it’ll be the end of May before all the opening arguments are on the table. After that, it could be a year or more before the process is complete and the San Francisco judges issue a decision.
Six of those challenges were filed by cities, counties and their associations that contend that the FCC went beyond the authority it was granted by congress, if not beyond the bounds of the federal constitution. The other three were submitted by mobile carriers who thought they should have been given even more freebies by the FCC.
Those cases were transferred to the San Francisco-based ninth circuit by the tenth circuit court of appeals in Denver, which agreed with arguments made by the City of San Jose and other local agencies that the FCC’s September wireless preemption order and its August wireline preemption order were, for legal purposes, two halves of the same decision.
There’s still a lot of housekeeping work to be done, though, before substantive arguments can begin. Four other challenges – one by AT&T and three by municipal challengers – are lodged in the federal appeals court based in Washington, D.C. Presumably those will be transferred to San Francisco, too, and then consolidated with all the others – September wireless order and August wireline order alike.
The Order does not itself require localities to do anything, nor does it compel approval of any particular siting request; it simply articulates standards for courts to apply if and when they are confronted with any future siting disputes that might eventually arise…nor does it prevent localities from recovering all of their actual and reasonable costs…
The Order’s safe harbor for recurring fees up to $270 per small cell per year is not a “limit o[n] compensation” above that amount, as Movants wrongly assert; rather, the Order makes clear that localities may charge higher fees if a reasonable approximation of their costs exceeds that amount.
When the Order takes effect, the only consequence is that carriers may submit new requests to be processed under these standards. If a locality does not timely grant a request, the carrier must allow at least sixty days to elapse before seeking judicial review. A court must then determine whether the locality has violated the statute under the particular facts presented and whether relief is warranted—determinations that “remain within the courts’ domain.” The Order will thus have no compulsory effect until the affected locality has an opportunity to justify its decision before a “court of competent jurisdiction.”
Both AT&T and Verizon signalled that they intend to take a more aggressive attitude towards cities once the FCC order is, in theory, in effect. But as the FCC itself points out, there’s no urgent need to humor them. Yet.
Update, 11 January 2019: the federal tenth circuit court of appeals denied a request by the City of San Jose and other cities to delay implementation of the FCC’s September preemption order. It is still scheduled to take effect on Monday.
The growing list of challenges to a Federal Communications Commission decision to preempt local ownership of streetlight poles and other municipal property located in the public right of way will be decided by the San Francisco-based ninth circuit federal appeals court.
Originally, the cases were assigned by lottery to the federal tenth circuit court, headquartered in Denver. But a coalition of local governments led by the City of San Jose argued an earlier appeal of a separate but related FCC order – aka the August order, which dealt primarily with wireline issues – should take precedence as the lead case. Yesterday, the Denver appeals court agreed that the FCC’s wireless deployment order, aka the September order, which took away any ownership rights cities might have over streetlight poles is inextricably intertwined with it…
After careful consideration, we conclude that the FCC’s August Order and its September Order are the “same order” for purposes of [federal law]. Accordingly, the motion to transfer is granted and these matters are transferred to the United States Court of Appeals for the Ninth Circuit.
The decision to send the challenges – there are at least nine, encompassing dozens of local governments and organisations – to San Francisco could create a bit of a mess for the next few days. The FCC’s wireless order is due to take effect on Monday. One request to put the order on hold was filed in St. Louis, and similar motions are expected from other challengers. That’s a lot of work on short notice.
Firing back at mobile carriers and the FCC, who oppose the move, the San Jose group said that the big question in the case – regarding what “prohibit or effectively prohibit” broadband deployment means – is the same as in an appeal of an earlier FCC order that’s being heard in San Francisco. Federal law says state and local governments can’t block – effectively prohibit – wireless infrastructure deployment. The wrangling now is about defining when the prohibition threshold is crossed…
[The FCC] interpretation finds an effective prohibition where a requirement inhibits, inter alia, “improvements to service,” or imposes costs that may prevent a provider from investing in deployment in other areas…
[This] new interpretation put forth by the [FCC] Orders conflicts with Ninth Circuit…precedent holding that the plain language of [federal telecoms law] require an actual prohibition; speculative impacts or mere barriers are not enough.
On the other hand the Denver appeals court – the tenth federal circuit – set a lower bar. According to the FCC, the Denver court believes a local ordinance fails the test if it “materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment”. Clearly, the FCC and its telecoms industry friends would rather be held to the Denver court’s standard. Equally, San Jose and its allies have reason to prefer San Francisco.
It’s now up to the Denver court to decide where the challenge to the FCC order, which takes effect in less than three weeks, will be heard.
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.
Most of North Little Rock’s arguments are specific to municipal electric utilities. Federal law exempts municipal utilities from FCC pole attachment oversight. Muni electric utilities also have to follow more rigid safety requirements – working on high voltage lines is a dangerous job – and they have long-established procedures for working with telecommunications companies, wired and wireless alike.
One central argument, though, applies to any kind of municipal property and will be repeated many times by the other cities that are challenging the FCC order, whether or not they’re in the electric business. That argument is that FCC went way beyond the limits of its authority when it said that cities don’t have property rights over assets they build, maintain and own. The FCC, North Little Rock claims, “ignores the plain language” of federal law and “it’s own prior rulings”…
[Federal telecoms law] only applies to local and state governments acting in a governmental, regulatory capacity, so the Commission has no authority to regulate municipal utilities when they operate in a proprietary capacity.
Recognizing the regulatory versus proprietary distinction, the Commission and courts have previously concluded that these [sections of federal law] relate to state and local governments when they are acting in their regulatory capacity — e.g., issuing permits for the use of the public right of ways — as opposed to when they are acting in a proprietary capacity, such as when they lease or rent utility facilities or property. Further, the Commission recognizes this distinction as evidenced by one of its prior decisions in 2014, when it stated that neither [of those sections] apply to the "non-regulatory decisions of a state or locality acting in its proprietary capacity.”
The FCC’s September wireless order also tries to limit state and local discretion over when, where and how wireless facilities can be installed in the right of way, either directly or on privately owned infrastructure. The agency is on firmer legal ground when it’s regulating the regulators. Past federal court decisions have deferred to the FCC’s judgement in many instances. North Little Rock’s motion properly re-draws a clear line between regulation and property rights and ownership that the FCC wants to erase.
…do not constitute “the same order” because they each address separate and discrete subjects. The [wireline order] addresses federal pole attachment rules…and state and local moratoria on new wireline and wireless infrastructure through explicit or de facto refusals to allow deployment. The [wireless order], by contrast, does not relate to either state or local moratoria or pole attachment rules, nor does it apply to wireline facilities. Rather, it addresses three discrete subjects in the specific context of small wireless facilities: fees and charges assessed by state and local governments, aesthetic requirements and similar issues, and timelines for state and local authorizations.
It’s now up to the federal appeals court judges in Denver to decide who has it right.
A request by San Jose to move the case to San Francisco is still being considered by the Denver judges. Another related matter is under consideration by the federal appeals court based there. All this needs to be sorted out quickly. The FCC’s wireless preemption ruling takes effect in less than a month, on 14 January 2019.
The Federal Communications Commission says it has the authority to tell cities and counties what they can do with property they own, because otherwise they would be breaking the law. In a decision that should have surprised no one, the FCC refused to put its September wireless preemption ruling on hold.
Instead, in an odd bit of contradictory reasoning, the FCC’s latest order says it’s not taking away cities’ rights to property they own that’s located within the public right of way (ROW), such as street light poles and traffic signals. All the FCC is doing, the order says, is preventing local governments from breaking the law…
The Order does not implicate local governments’ actions in their role as property-owners; rather, it focuses on preventing them from violating federal law when they engage in “managing or controlling access to property within public ROW” for wireless facility deployment.
Except the illegal activities that cities are supposedly engaging in are completely legal. Or at least were until the FCC reversed earlier decisions and said that congress gave it the authority to tell local governments what they can do with property they own, simply because it’s in the ROW and mobile companies think it’s highly valuable.
The order was in response to a request from the National League of Cities and several local governments to delay enforcing the local property preemption until federal courts decide whether it’s cities or the FCC that’s breaking the law. It was a futile, but necessary move. Usually, federal judges won’t consider a request to delay a federal agency’s action until the agency refuses to do so itself.
Mobile carriers also challenged the ruling, because they didn’t get everything they wanted. And – likely – because they didn’t want the case heard in San Francisco’s ninth circuit court of appeals, which is not their home turf, to say the least. Under court rules, when multiple appeals of a federal agency’s action are filed in different appellate districts within 10 days of its publication, a lottery is held to determine where they will be consolidated. Denver won the draw.
But San Jose and its cohorts found a wrinkle in the law. They argue that the 10 day clock starts running when the first appeal in a given agency proceeding is filed. The City of Portland appealed an earlier FCC wireline ruling two weeks before the local agencies and mobile carriers went to court to challenge the wireless ruling. The wireline and wireless rulings were part of the same proceeding: as case law cited by San Jose puts it, both “are associated with the same dockets, arise out of the same administrative proceeding, and govern aspects of a single agency undertaking to implement…provisions in the Telecommunications Act of 1996”.
All the cities and counties involved are in the ninth circuit’s vast western territory. In the past, the San Francisco court has interpreted federal telecoms law more narrowly, and more in line with municipal interests, than the Denver appeals court. It makes sense for them to try to get the case moved.
The mobile carriers and the FCC will have a chance to argue against the transfer, and it’s a fair bet they will. A decision on San Jose’s motion will likely come quickly from the Denver court – there’s not a lot of time left before the FCC’s wireless preemption ruling takes effect on 14 January 2019 and, whether it’s in Denver or San Francisco, there’s a lot of legal work to be done.