Tag Archives: ab57

FCC illegally “asserts federal control over municipal utility structures”, court told

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The City of San Jose briefly explained its case against the Federal Communications Commission in a filing with the federal appeals court in Denver last week. San Jose, Los Angeles County and eighteen other western cities joined together to challenge the FCC’s decision to preempt local ownership of streetlights, traffic signals and other municipal property that’s located in the public right of way.

Six other challenges were filed – two by local agencies and associations that represent them, and four by mobile operators who think the FCC wasn’t generous enough. The cases were lodged in several different federal appeals courts around the country, and then were consolidated, via a lottery, in the tenth circuit court of appeals in Denver.

AT&T’s appeal was filed in Washington, D.C. but wasn’t included in the first round of consolidation. Last week, the FCC asked that it be moved to Denver, too, and AT&T didn’t oppose the request.

San Jose told the court…

On Sept. 26, the Federal Communications Commission issued a Declaratory Order and Report and Order…that, among other things: reinterprets key statutory terms…and which establishes new deadlines for action on applications for “small wireless facilities.” Many local governments, including Petitioners, objected to the FCC’s proposals on both legal and policy grounds, and submitted substantial legal, economic, and policy evidence into the underlying record never addressed by the agency.

Among other things, the Order abrogates an en banc plain language decision of the Ninth Circuit interpreting [those key statutory terms]; requires states and localities to lease facilities not generally dedicated to public use to certain wireless companies at out of pocket costs…asserts federal control over municipal utility structures; shortens time for action on wireless applications in a way that is designed to prevent public participation; and sets a federal standard for aesthetics without authority. Petitioners dispute the ruling on statutory and constitutional grounds, and also argue that it is, inter alia, arbitrary, capricious, an abuse of discretion and otherwise contrary to law.

The second group of cities and other organisations, which is led by the City of Seattle, hasn’t offered its initial argument yet, nor has the City of Huntington Beach, which launched a solo appeal.

Verizon, Sprint and Puerto Rico Telephone have, though. Verizon’s litigious trolling is typical, claiming that the FCC completely blew it because it didn’t go far enough…

The FCC’s refusal to implement a “deemed granted” remedy is arbitrary and capricious in violation of the Administrative Procedure Act, and is an abuse of the Commission’s discretion. It also violates other federal laws including, but not limited to, the Communications Act of 1934, the Commission’s own regulations, and the United States Constitution; and it is otherwise contrary to law.

AT&T’s initial filing made a similar claim, so it’ll be no surprise if it follows Verizon’s lead. The federal appeals court in Denver hasn’t set a schedule for further proceedings yet.

The FCC’s order is scheduled to take effect on 14 January 2019. The logical next step for the municipal challengers is to ask the court to put it on hold, until the cases are heard.

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

Denver court will hear appeals of FCC decision to preempt local control over poles, wireless permits

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A federal judicial panel decided on Friday to consolidate at least six of the seven appeals filed by local governments and wireless carriers against an FCC ruling that attempts to set sweeping new small cell permit and leasing rules for local and state governments. Yesterday, the court given the job – the tenth circuit of the U.S. court of appeals, based in Denver – issued instructions to the challengers, essentially telling them to get their paperwork in order and stand by for further instructions.

Three of the appeals were launched by west coast cities, counties and their associations. They object to the sharp limitations that the FCC wants to put on their standards, procedures and fees for small wireless facility permit applications, and to the FCC’s declaration that they can’t control property they own in the public right of way, such as street light poles and traffic signals.

According to the FCC, cities have to allow wireless carriers to attach equipment to street light poles more or less at will, and only charge $270 per pole per year for the privilege. The Californian average for municipal pole leases is between $500 and $900 per year, with many Bay Area cities beginning to come to a consensus around the $1,500 per year figure.

The other four appeals were filed by wireless carriers: AT&T, Verizon, Sprint and the Puerto Rico Telephone Company (PRT). They think the FCC’s ruling didn’t go far enough – they want all the marbles, not just most of them. Verizon’s appeal surfaced at the end of last week. I’m not sure exactly what happened, but it appears that there was some kind of paperwork glitch that delayed its release. There’s no substance to it yet; Verizon simply asked the federal appeals court in New York to review the FCC ruling.

Because the seven appeals were spread over five federal appellate districts, a judicial panel held a lottery to decide where they’ll all come together. The Denver court’s name was drawn. It’s where Sprint’s case was filed. As of last night, it’s assigned the appeals filed by the local agencies, Sprint, Verizon and PRT. AT&T’s appeal, which was filed in the District of Columbia, isn’t included yet.

A similar drawing was held earlier this year when several groups appealed the FCC’s decision to repeal network neutrality rules. The initial winner was the San Francisco-based federal appeals court, but the cases were eventually moved back to Washington, D.C. by mutual consent. There’s no indication yet if something like that is in the works for these wireless preemption appeals, or where AT&T’s case will land.

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

Western cities line up against FCC muni property grab

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There must be something in the salt air coming off the Pacific Ocean. Only local agencies on or (relatively) near the west coast asked a federal appeals court to block the Federal Communication Commission’s decision to preempt local ownership of streetlights and other municipal property that’s planted in the public right of way. Contrary to my prediction, the rest of the U.S. is sitting it out. I checked the websites of the federal appeals courts around the country, and didn’t find any new challenges.

Twenty-two cities, two counties and three state-level League of Cities organisations joined the three lawsuits filed in the San Francisco-based ninth circuit court of appeals last week. The roll of honor is…

  • City of Yuma, Arizona
  • League of Arizona Cities and Towns
  •  
  • City of Arcadia, California
  • City of Burlingame, California
  • City of Culver City, California
  • City of Huntington Beach, California
  • City of Los Angeles, California
  • City of Monterey, California
  • City of Ontario, California
  • City of Piedmont, California
  • City of San Jacinto, California
  • City of San Jose, California
  • City of Shafter, California
  • Los Angeles County, California
  • Town of Fairfax, California
  • League of California Cities
  •  
  • City of Las Vegas, Nevada
  •  
  • City of Portland, Oregon
  • League of Oregon Cities
  •  
  • City of Bellevue, Washington
  • City of Burien, Washington
  • City of Gig Harbor, Washington
  • City of Issaquah, Washington
  • City of Kirkland, Washington
  • City of Seattle, Washington
  • City of Tacoma, Washington
  • King County, Washington

I did find one more telco that jumped on the greedy wagon: the Puerto Rico Telephone Company joined AT&T and Sprint in asking appeals courts to automatically give them the privilege of hanging their equipment on poles – whether they own them or not – if a city takes too long to process a permit application. Those petitions were filed in Boston, the District of Columbia and Denver, respectively.

It’ll take a few days, maybe a week or two, for the federal court system to decide if and where the cases will be heard together. Harold Feld has an excellent explanation of how that works here. It might ultimately be done by a lottery, or by mutual agreement or it’s possible that the telcos’ appeals will be heard separately from the local agency ones.

Links to the all the petitions and background documents are here.

Cities pile onto appeal of FCC pole preemption decision, AT&T doubles down on greedy

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Cities and counties across the western U.S. are challenging the Federal Communications Commission’s ruling that preempts local ownership of street lights, traffic signals and other assets located in the public right of way.

AT&T and Sprint, on the other hand, appealed the FCC’s decision, claiming it didn’t go far enough. Links to the petitions are below.

League of Cities organisations from Arizona, California and Oregon, along with the cities of Seattle and Tacoma, and King County in Washington filed a challenge in the ninth circuit court, which is the San Francisco-based federal appellate court that handles cases from the west coast and some mountain states. A second joint petition was filed by 20 local agencies from Washington, Oregon, Nevada and Arizona, as well as California. The City of Huntington Beach, in southern California, filed a separate challenge.

The City of San Jose is the lead agency for the second group. They’re asking the court to throw out the FCC’s decision

The Ruling exceeds the FCC’s statutory authority; is arbitrary and capricious and an abuse of discretion; and is otherwise contrary to law, including the Constitution of the United States. The Petitioners respectfully request that this Court hold unlawful, vacate, enjoin, and set aside the Declaratory Ruling; and grant such other relief as it may deem appropriate.

That’s pretty much the substance of all three petitions that ask the ninth circuit to block the ruling.

Amazingly, the wireless carriers are claiming the FCC fumbled the ball because its ruling didn’t give them absolutely everything they wanted. In a filing with the District of Columbia appeals court, AT&T said the ruling is “arbitrary, capricious, inadequately reasoned, or otherwise contrary to law”, because it doesn’t automatically grant them the right to install their equipment on publicly-owned light poles if the FCC’s shot clock expires before a city makes a final decision. For existing structures, such as light poles or traffic signals, it’s a 60 day shot clock; new poles or towers have a 90 day shot clock. Sprint filed similar arguments with the tenth circuit in Denver.

(California already has a “deemed approved” law for wireless permits – assembly bill 57 – which was passed by the legislature in 2015. How it interacts with the FCC’s attempt at preempting local property rights, and other aspects of the ruling, is a question yet to be untangled).

At this point, these petitions are little more than a ticket in a judicial lottery that will decide which appeals court hears the cases. I haven’t tracked down any others yet, but it’s a good assumption that more local governments in different federal appellate court districts are also in the game. Verizon and T-Mobile and possibly other companies might have filed petitions elsewhere, too. It’ll take a couple of days for the dust to settle.

A similar situation arose earlier this year when organisations in various parts of the U.S. challenged the FCC’s decision to roll back network neutrality. The resulting lottery gave the case to the ninth circuit, but then a deal was cut to take it back to Washington, D.C. That’s where many of the big guns in the case live and where the appeals court has a lot of experience dealing with FCC matters in general, and net neutrality in particular.

The same might happen with this case. Might. On the other hand, there are other issues on the table, like property law and state authority, so there’s a reason for cities to try to get it heard on their home turf.

Once the case has found a home, expect local agencies to ask the court to put the FCC ruling on hold until it’s decided. The FCC’s ruling is supposed to take effect on 15 January 2019. The FCC’s attempt to overrule local property ownership is radical enough to be 1. challenged with a plausible chance of success, 2. disruptive if it’s enforced and 3. difficult to unravel if it’s eventually overturned. That could be enough to convince federal appellate judges to slow it all down.

Update 29 October 2018, 13:51: A sixth challenge was filed by the Puerto Rico Telephone Company. It makes the same I want it all argument as AT&T and Sprint. The petition was filed in the first circuit, which is based in Boston and is the designated federal appeals court for Puerto Rico. I checked the websites of all the federal appellate courts, and could only find six challenges. More might be filed later, but last week was the deadline for getting in on the “lottery”. It’s looking like a 50/50 chance the cases will be heard in San Francisco.

Petitions asking appeals court to block FCC wireless ruling, 24 October 2018

Leagues of Cities (Arizona, California, Oregon), City of Seattle (lead), City of Tacoma, King County, Washington
City of San Jose (lead), County of Los Angeles and 18 other cities in Arizona, California, Nevada, Oregon and Washington
City of Huntington Beach, California

Petitions asking appeals court to add “deemed granted” privileges to FCC wireless ruling, 25 October 2018

AT&T
Sprint
Puerto Rico Telephone Company

Links to all documents relating to the FCC’s preemption of local permitting discretion, right of way authority and pole ownership

Cities challenge FCC’s wireless big foot, AT&T tells court it isn’t big enough

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Cities and counties in western states, and their lobbying organisations, asked the federal appeals court in San Francisco to block a ruling by the Federal Communications Commission that would take away most local authority over small cells and other wireless facility permits, and preempt ownership of municipal assets, such as streetlight poles, in the public right of way. Links to all the documents filed last week are here

AT&T and Sprint also challenged the FCC’s decision, because, they say, it didn’t go far enough. They want to be automatically granted the right to attach their equipment to existing poles if cities take too long to reach a final decision on permits – 60 days for attachments to existing poles, 90 days for new ones.

I’ll post a deeper dive into all of this tomorrow morning.

California legislature approves LA fast track wireless reviews, sorta

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The way California law works now, if a permit application for a new cell tower is held up for more than five months because of reviews or challenges resulting from the California Environmental Quality Act (CEQA), then the permit is deemed approved. Yep, regardless of whatever other issues are involved, once the shot clock expires, permission to build a new cell tower is automatically granted.

Suppose, though, that CEQA didn’t apply to…

  1. Antennas, including microwave dishes and arrays.
  2. Antenna support structures.
  3. Equipment enclosures.
  4. Central system switch facilities.
  5. Associated foundations and equipment.

If…

The project site…already contains either of the following:

  • An antenna support structure and either of the following components:
  • Antennas.
  • Equipment enclosures.

Well, that’s the way it’ll continue to work for a next generation public safety radio system in Los Angeles County, assuming it’s happening on public property and it passes a simple environment check. And assuming governor Brown signs senate bill 1008, which landed on his desk last week.

The exemption was originally granted in 2012, and is being extended because it’s taking a really long time to build. It’s also limited, in the grand scheme of things. Big as it it, it’s lilliputian compared to the infrastructure deployed by a typical mobile carrier.

But at its core, there’s a sound principle at work: when time is critical – shot clocks included – chop out the impenetrable undergrowth of endless procedures, reviews and appeals and eliminate obsessive minutia, and instead identify on genuine problems. And solve them quickly. Or deny the application just as fast.

The Federal Communications Commission is preparing for more preemptions of state and local authority over wireless facility colocation and tower construction projects. In order to effectively exercise what little discretion remains, cities and counties can’t be trapped like a kitten in ball of yarn by byzantine statutes and case law that drag decisions out for years.

Fast mobile broadband decisions forced on California cities

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California cities (and counties) need to overhaul the way wireless broadband permits are processed. That’s the plain message that the California legislature sent last year, when it passed assembly bill 57. The new law put teeth in the Federal Communication Commission’s wireless shot clocks: if decisions – yes or no – on permit applications for new towers or other facilities aren’t made within 150 days, then the answer is yes. Permits are “deemed approved”.

It’s the same story, but with tighter deadlines, for modifications to existing facilities. Depending on the specific circumstances, California cities have 60 or 90 days to reach a decision on colocation of new equipment, such as antennas, on existing towers or other structures that already support wireless facilities. (And if you ask lawyers for mobile carriers, they’ll tell you the colocation shot clock might apply to any existing structure, whether or not there are antennas or other gear there already).

Joint Venture Silicon Valley held a Smart Cities conference in San Jose on Wednesday. I tag teamed a presentation on AB 57 with an attorney from AT&T – you can download my take on the new rules here. What was surprising was the extent to which we agreed. There’s plenty of room to argue the details, but the bottom line, no matter which side you’re on, is that the California legislature left very little room for lengthy public participation processes or bureaucratic procedures.

Cities still have all the discretion they ever had – arguably not much, but it’s still the same – over permits for new wireless facilities. But the decision has to be made quickly, and initial reviews of applications need to happen even faster – cities have 30 days to pause the shot clock by requesting additional information. After that, the clock runs whether or not all the work required by municipal codes or standard operating procedures is finished. And when it runs out, construction can begin.

Wireless permit shot clock primer for Californian planners

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Sharp limits on local review of proposed cellular sites and other wireless facilities went into effect in California at the beginning of the year. It’s the result of a new law passed last year – assembly bill 57 – that put teeth into Federal Communications Commission shot clock rules that say cities and counties have to make a decision on permit applications within 90 days if it’s adding equipment to an existing site or 150 days if it’s completely new. In California now, if the shot clock runs out, the permit is automatically deemed approved.

That’s on top of another FCC rule that sets a 60-day shot clock with deemed granted provisions for smaller collocations.

Omar Masry, the former wireless permit guru at the City and County of San Francisco (he’s with the mayor’s office now) co-wrote with attorney Robert May an excellent article with some detailed suggestions for local planning and public works officials who have to deal with the new rules. At the top of the list is advice to be very careful about carefully reviewing any new permit applications, and reject as incomplete ones where…

  • Any existing on-site wireless facilities were not built, modified or maintained correctly (request current site photos and prior plans/permits in submittal forms).
  • There are current Municipal (Building, Fire) Code Violations at the Project Site.
  • Commonly expected submittal items are missing. Determine if based on local practice, whether specific exhibits (geo-technical, archaeological surveys, Phase I reports, and environmental evaluations) should be required for freestanding facilities, or facilities with other major ground disturbances (excavations, access roads, fuel tanks, new equipment/building pads). Indicate these requirements up-front on the application forms.

Rejecting incomplete applications is the only way to stop the clock, other than by mutual agreement with the cell tower or wireless company. That rejection can’t be arbitrary, so a detailed checklist of required items is needed to ensure due process and make sure nothing is missed. If you’re involved in either building or reviewing permits for wireless facilities of any kind, Masry’s article is a must read.

Sprint says let a thousand poles bloom

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Smaller cells on poles in public right of ways and microwave backhaul are Sprint’s formula for future success, according to media reports (h/t to Omar Masry with the City and County of San Francisco for the pointer).

It’s all about operating costs. Right now, Sprint is paying for capacity on Crown Castle and American Tower-owned, full size macro cell sites. Instead, rumor has it, Sprint will opt for a multitude of cheaper small cells stuck on top of steel and/or wooden poles, planted along public roads and such, and leased from Mobilitie, a Newport Beach-based company. Under California law, telephone companies don’t have to pay to use the public right of way and local agencies have increasingly fewer alternatives for influencing what gets built in it.

Sprint doesn’t want to pay to lease fiber either, according to a story in Re/code

The carrier also is seeking to reduce its dependency on AT&T’s and Verizon’s high-speed, fiber-optic cables that provide links to the cellular towers and mobile switches…

Sprint has been been cutting annual checks of $1 billion for backhaul to its two big rivals and, not surprisingly, would prefer to put less money into those companies’ hands. The new plan would instead use microwave technology for this purpose, an approach previously used by Clearwire, which Sprint acquired in 2012.

Think of it as a preview of the world yet to come. Small cells – even smaller and more numerous than what Sprint is planning – will blossom when 5G networks are rolled out in the next decade. Which means more poles, and stuff on poles, in the landscape.

California wireless shot clock might trump environmental reviews

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A pretty simple decision.

The California Environmental Quality Act – CEQA – has evolved into a powerful tool for Nimbys and others who want to say no to infrastructure projects or other construction work. The seemingly endless possibilities for reviews, questions and appeals can stall projects for years, with no discernible benefit to either the environment or communities. Except for people who simply want to delay the process, in the hopes of killing projects drip by drip.

Assembly bill 57, which was passed by the legislature and signed by the governor last week, puts a time limit – a shot clock – on that process for wireless infrastructure, 150 days for new facilities and 90 days for add ons to existing ones. It allows for limited extensions of those deadlines, but there’s no opportunity to stall it indefinitely, without going to court. The staff analysis done for the California senate points out that there’s no exception for CEQA…

AB 57 is silent on several aspects relating to [pausing] the shot clock, including whether the shot clock is [paused] for:

1)Environmental review pursuant to CEQA; 2)Public notice as required by the state’s open meetings laws-as opposed to the notice that the applicants themselves are required to provide; 3)Appeals of decisions on wireless facilities to the legislative bodies of cities and counties.

However, local governments may not be able to complete those activities before an application is deemed complete under AB 57. As a result, they face the difficult choice of cutting short these important processes, reducing the time that they have to review applications, or denying permits and facing litigation.

Cutting processes short and reducing the time for review is actually the point of the law. Towers are not complicated and there’s only limited scope – legally – for a local agency to deny a permit or impose conditions. Bolting new equipment on – within the defined limits – should be a no-brainer.

The real question is: what happens if the shot clock runs out and environmental reviews aren’t complete?

The law simply says “a collocation or siting application for a wireless telecommunications facility…shall be deemed approved if…the city or county fails to approve or disapprove the application within a reasonable period of time”, in other words within the 150/90 day shot clock rule. At that point, any loose ends, environmental or otherwise, are deemed tied off.

The plain English interpretation won’t fly right off the bat, but the inevitable court fights will begin with the presumption that permits are deemed approved. That’s a big improvement on the eternal litigation we have now.

If it works as hoped, it could be a model for other types of infrastructure projects, broadband and otherwise.