Tag Archives: ab57

Federal court fast not-so-slow tracks appeals of FCC’s preemption of local pole ownership

by Steve Blum • , , , ,

The good news is that the appeal of the Federal Communications Commission’s preemption of local ownership of streetlight poles will be fast tracked. The not so good news – which isn’t exactly news to people who follow such things – is that fast is a relative term.

An order issued yesterday by the ninth circuit federal appellate court in San Francisco granted a request “to expedite oral argument” in the case, made by dozens of local governments. What that means is that the court is looking at “dates for February 2020 and the two subsequent…months” for those arguments to happen.

The judges hearing the case will also have to decide whether to handle everything at once, or break it up into more manageable bits. The primary case involves two decisions made by the FCC last year, both dealing with the way state and local governments manage access to roads and anything else considered to be the public right of way, and the degree of ownership control they can exercise over structures, such as light poles or traffic signals, they install there. One decision dealt mostly with deployment of wireline telecoms infrastructure, the other with wireless facilities.

One issue that’s particular to municipal electric utilities – whether federal law allows the FCC to regulate their utility poles – was separated out earlier. The cities and counties litigating the main case asked for arguments for and against one touch make ready rules for privately-owned utilities to be heard separately. Yesterday’s order said the three judge panel will sort that out later.

Assuming that oral arguments happen sometime between February and April, and the judges issue a decision in a three to six month time frame (typical, but it could be longer or shorter), then we won’t know if the FCC’s decisions will stand until this time next year. That’ll add to the uncertainty faced by cities as they try to manage the expected avalanche of permit applications for small cell facilities and associated fiber optic installations.

Cities ask federal court to speed up review of pole ownership preemption, FCC says keep it slow

by Steve Blum • , , , ,

La small cell

Local governments from around the U.S. asked the federal appeals court in San Francisco to speed up consideration of their challenge to the Federal Communications Commission preemption of local ownership and control of the public right of way and assets located in it, such as street light poles and traffic signals.

In a motion filed last month, they told judges that on the one hand, disputes are piling up, and on the other, the FCC is aggressively pushing ahead…

First, there are several other cases progressing through the lower courts that will be affected by the outcome of this appeal…Delay in resolution will simply complicate the work of district courts and Circuit Courts of Appeal throughout the country, as more applications are filed and more disputes arise.

Second, this appeal is a matter of great importance to virtually every locality in the nation. While this appeal is pending, Local Government Petitioners and Supporting Intervenors and similarly situated parties are confronted with uncertainty as to how to develop and apply local standards for small cell deployment, which is rapidly occurring…

Third, the Commission is not waiting for this Court to decide the validity of the Orders challenged on appeal. In fact, the Commission is currently building on those Orders, which makes possibly unwinding them all the more difficult.

The FCC opposes anything that would speed up what increasingly looks like a case it will lose. Its response says, in effect, there’s no reason to hurry, because any problems that are created can be fixed later. That was the gist of a ruling earlier this year by federal appellate judges in Denver, just before they handed everything off to their colleagues in San Francisco.

That’s a line of argument that might apply equally well to the FCC’s preemption orders, which also set tight deadlines for action on permit applications filed with local government by telecoms companies.

FCC is a mouthpiece for telecoms industry’s “self-interested assertions”, local governments tell federal court

by Steve Blum • , , , ,

Riverside pole mount

The rounds of written arguments and counter arguments in the appeals of last year’s FCC decisions preempting state and local governments’ control of public right of ways and ownership of property, such as street light poles and traffic signals, they install there is drawing to a close. Several groups filed rebuttals to the FCC’s defence of its preemption. The primary opposition came from a reply brief filed by a long list of cities and counties in the federal appeals court based in San Francisco, which is hearing the combined challenges to two sweeping rulings made by the FCC last year.

The local governments shot down the FCC’s claim that mobile carriers will build more infrastructure if pole rental fees are lower isn’t based on independent evidence or company track records…

The Commission tries to fill the gap with industry’s self-interested assertions that they will increase small cell investment in response to lower fees. But the record shows that providers have not increased deployment when offered lower fees. The Commission relies on AT&T’s assertion that it has not deployed any small cells in Portland, Oregon, due to the current fee levels. Yet when Portland conducted a pilot project, lasting more than three years, that set lower annual rights-of-way fees, AT&T did not submit a single small cell application.

And, they said, the FCC falsely accuses cities of monopolising access to streets, while ignoring the real monopolists…

The Commission’s claim that local fees reflect “monopoly pricing” ignores record evidence that, unlike the case with wireline facilities, private property alternatives to rights-of-way and rights-of-way infrastructure exist for locating wireless facilities. It also overlooks this Court’s recognition in Charter Communications, Inc. v. County of Santa Cruz that unlike private businesses, local governments are accountable to voters with interests beyond profit maximization.

The FCC’s preemption of ownership of municipal property placed in the public right of way, such as street light poles and traffic signals, isn’t based on powers granted by congress, the local governments’ brief further argues…

The Communications Act of 1934’s only affirmative grant of authority with respect to regulation of access to utility poles and similar structures…does not reach municipal property…There is no response to our argument that the Act gives the Commission no general roving authority to regulate private or public property merely because it is convenient or even necessary for use in telecommunications.

The American Public Power Association, which represents municipal electric utilities, also made the argument that federal law specifically bars the FCC from regulating poles owned by government agencies.

Four mobile carriers – AT&T, Verizon, Sprint and the Puerto Rico Telephone Company – filed a desultory brief in support of the judge shopping lawsuits they filed in four different appellate districts. I can imagine the conversation: I know we gotta make it look good, but keep the billable hours to a minimum please. And Montgomery County, Maryland’s quest to make tin foil hats great again continued.

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

FCC’s bromance with mobile lobbyists shines through in briefs. Court briefs, that is

by Steve Blum • , , , ,

The FCC’s subservience to the telecommunications companies it’s supposed to regulating – or at least the grovelling of its republican majority – is highlighted by the industry’s defence of sweeping preemptions issued by the commission last year. In a brief filed with the San Francisco-based ninth circuit federal appeals court, carriers and their lobbyists effectively admit they were gaming the judicial system when they tried to steer the case to a friendlier court, with the collusion of the FCC. Four cell companies filed the same argument – that the FCC committed a heinous error by not automatically granting construction permits when shot clocks expire – in four different appellate courts.

In this latest reply, which is signed by two of the four, Verizon and Sprint, mobile industry mouthpieces said the FCC’s “authority to interpret and apply the Communications Act” is “well-established”, and the rules it adopted were “common-sense interpretations of the statutes as they apply to all telecommunications services, an action clearly within its statutory discretion”.

They go even further, and say flat out that requiring carriers to go to court to get permission to build once a shot clock runs out is “reasonable” and “the commission’s decision to take a more moderate tack is thus more than justified by the record”.

That’s not what they said when they went judge shopping.

Although mobile carriers won the judicial lottery – the case was first assigned to Sprint’s favored judges in the Denver-based tenth circuit – the wheels of judicial procedure continued to grind, and an earlier challenge mounted by the City of Portland was given precedence. As a result, all the cases filed by cities and carriers were bundled into one big proceeding in San Francisco.

The tight relationship between industry lobbyists and republican commissioners was made crystal clear during the FCC’s broadband deployment advisory committee charade. That was enough to get a wish list published, but it will take more than a bromance to convince federal judges.

Verizon mounts dubious legal assault on pole rental fees in Rochester

by Steve Blum • , , , ,

Rochester street light

Verizon is using a legally shaky ruling by the Federal Communications Commission to shake down the City of Rochester, New York. Last year, the FCC ruled that publicly owned property, such as light poles or traffic signals, located in the public right of way were, in fact, part of the public right of way and not municipal property.

Rochester wants to charge Verizon up to $1,500 a year in rental fees for the use of city-owned poles in the public right of way. That’s considerably more than the FCC’s “safe harbor” rental rate of $270 per pole per year. So Verizon filed a lawsuit against the City of Rochester in federal court (h/t to Jon Brodkin at Ars Technica for the pointer.

The problem with Verizon’s claim is that the FCC has already cut the legs out from underneath it. In its filing, Verizon described the FCC’s $270 figure as a “presumptively reasonable limit”.

Unfortunately for Verizon, in its defence of its pole preemption ruling in a San Francisco-based federal appeals court, the FCC said that “there is no presumption that fee amounts outside the safe harbor are impermissible or preempted. A safe harbor is not a ceiling”.

Rochester’s initial response to Verizon’s objections was “we have concluded that our permit fees and recurring fees for use of the City’s rights of way, including those for pole attachments related to the deployment of small wireless facilities, comply with all federal law requirements and limitations”.

Hardball of this sort is part of Verizon’s style. In North Little Rock, Arkansas, Verizon sent a similarly threatening letter to the city, telling it to tear up a master lease agreement that had already been negotiated and agreed by both sides. I’ve seen it take the position that attaching a small cell to a publicly owned light pole should cost no more than attaching a fiber optic cable to a privately owned utility pole – something in the neighborhood of $25 per year in California, according to a formula set by the California Public Utilities Commission.

Threats and lawsuits might scare some cities into giving Verizon what it wants. But the decisive battle is being fought in San Francisco, and so far it doesn’t look like Verizon will end up on the winning side.

FCC admits some states, including California, can reverse its sweeping utility pole preemption

by Steve Blum • , , , ,

Even if a federal appeals court buys arguments made by the Federal Communications Commission and its good friends in the mobile telecoms industry, and allows last year’s preemption of local ownership of light poles and other municipal property in the public right of way to stand, it might not matter in California, or any other state “which regulates the rates, terms, and conditions for pole attachments”.

As it tries to defend its wide-ranging preemption against challenges being heard by a federal appeals court in San Francisco, the FCC filed another set of arguments last week saying its authority, at least as far as utility poles are concerned, comes from a particular section of the communications act of 1996. But it admits in its brief that its authority only exists “absent state regulation”.

When it passed the 1996 act, congress adopted a process that’s known as “reverse preemption”. It gave the FCC the job of regulating the use of utility property by telecoms companies, but allowed states to take the job back and do it themselves. Which California has been doing for decades.

Utility poles are one thing, street lights and traffic signals are another. But according to lobbyists and lawyers for the mobile telecoms industry, the FCC’s authority to set rules for every stick planted in the ground by a city comes from the same section of federal law that gives it the power to regulate utility poles.

Except, the FCC is saying, when a state, such as California, does it instead.

Oops.

The FCC already admitted to the court that it’s claim that cities and counties don’t actually own facilities they pay for and install is limited to situations where an agency also regulates the use of the right of way. Its defensible perimeter is even smaller now that it’s leaning on a section of federal law that bans it from interfering with state regulators, like the California Public Utilities Commission.

Mobile carriers, lobbyists offer half hearted support for FCC’s local pole ownership preemption

by Steve Blum • , , , ,

Two mobile carriers – Verizon and Sprint – and a group of industry lobbyists filed arguments in support of the Federal Communications Commission’s sweeping preemption of state and local ownership of public property with the federal appeals court based in San Francisco. That’s where the long list of challenges to the FCC’s 2018 wireless and wireline decisions are being heard.

The mobile industry’s arguments focus on whether the FCC has the authority to tell states and local governments how to manage and allow access to the public right of way. There’s no doubt the FCC has some role to play, but it’s a largely moot question in California where state law already limits local discretion over street and sidewalk access to short term, technical requirements about how to patch up holes and when to block traffic. Telecoms company have the right to plant poles and boxes in California’s right of way for free, with few restrictions.

What the carriers and lobbyists don’t explain, though, is where the FCC gets the authority to, in effect, confiscate property – light poles and traffic signals – owned by local governments and declare that those are available to private companies on the same free-for-all basis.

The best they can do is to say that even though congress said the FCC couldn’t preempt state and local property rights in similar circumstances, as it did in section 224 of the 1996 communications act, it didn’t say the FCC couldn’t in other circumstances…

Congress’s decision not to grant the FCC authority over government property in one statutory provision does not preclude that authority in an entirely different provision. In fact, the presumption is just the opposite: because Congress explicitly foreclosed regulation of government property in Section 224, its failure to do so indicates that such regulation is not foreclosed in another section…It is entirely reasonable for the FCC to conclude that Congress intended Section 224 to cover privately-owned poles and that public poles fall within the ambit of Section 253, which expressly addresses state and local regulation.

In other words, congress never said the FCC could.

The FCC has run into this problem twice before, and lost twice. The first time, in a case involving state-level municipal broadband regulation, the federal supreme court said the FCC was out of bounds because congress didn’t make it “unmistakably clear” that it was granting the necessary authority. That principal was reaffirmed by a federal appeals court in 2016, when it tossed out the FCC’s claim that states couldn’t limit cities’ ability to offer broadband service.

It’s looking increasingly likely that the FCC’s attempt to walk back its pole ownership preemption attempt to a more defensible perimeter will turn into a full scale defeat.

California has fewer worries about local property preemptions as FCC cedes ground in defence of wireless permit ruling

by Steve Blum • , , , ,

Monty python run away

Tactical retreat well describes much of the Federal Communication Commission’s defence of its heretofor sweeping rewrite of rules regarding local government pole rentals and permits for small(ish) cell sites. It goes to great lengths to explain that its bargain basement “safe harbor” price for permits and rental rates “is not a ceiling”.

It also backs down from what appeared to be a total preemption of publicly owned property located in the public right of way, limiting it to cases where “the property in question is controlled by the same government entity that controls the rights-of-way” and there’s a “‘temptation’ for governments to seek to ‘insulate conduct from federal preemption’ by ‘blending’ their regulatory and proprietary roles”.

The key question for Californian cities and counties is whether the FCC’s more tightly worded interpretation of its authority applies here. California law gives telecoms companies broad access to the right of way, and they don’t have to pay annual rent for the space they occupy. Except for upfront permit fees – which already must be cost-based under California law – telecoms companies use the right of way for free, and local governments can’t prevent them from doing so. Local discretion is limited to time, place and manner requirements. Cities do not own the right of way. Californian cities manage the logistics of accessing and sharing the right of way, but do not “control” it. It’s the difference between being a landlord and a traffic cop.

On the other hand, California law allows – arguably requires – local governments to act like a responsible landlord and charge market-based rents for the use of municipal property that they do own.

The worst case scenario for California is looking a lot better. The FCC’s shorter shot clocks for wireless permits do not have a practical effect here: the California legislature was, on the whole, even more generous to mobile carriers. Fees for services of all kinds, including permit processing, are limited to actual costs. Cities have robust processes in place to figure out what those are.

The question is whether the San Francisco-based federal appeals court considering the challenge to the September 2018 wireless ruling buys any of the FCC’s arguments. The FCC’s brief offers scant support for its property rights preemption. It cites a lower court case in New York where that concept was mentioned, and then goes through some awkward legal contortions to falsely imply that the judge specifically endorsed the idea.

Democratic FCC commissioner Jessica Rosenworcel’s observation that “it seems increasingly likely” that the courts will nix at least some elements of recent small cell rulings was prescient. A D.C. appeals court did just that on Friday, saying the FCC’s attempt to kill environmental and historical preservation reviews for small cells was “not logical and rational” and its decision making process was “arbitrary and capricious”.

It’s not going to look any better in San Francisco.

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

FCC small cell decision “not logical and rational” D.C. court rules

by Steve Blum • , , , ,

Spock look

The Federal Communications Commission’s March 2018 decision to scrap federal environmental and historical reviews for small cell sites was “arbitrary and capricious” according to the federal appeals court based in the District of Columbia, aka the D.C. circuit. In an opinion issued this morning, the D.C. circuit judges said “the commission failed to justify its confidence that small cell deployments pose little to no cognizable religious, cultural, or environmental risk”.

Today’s decision does not directly affect appeals of the FCC’s September 2018 wireless or August 2018 wireline rulings – those are being fought out in the ninth circuit federal appeals court in San Francisco. But it’s good news for the local governments that are challenging the FCC’s preemption of local ownership of poles and other infrastructure in the public right of way. They made the same top line argument – that the FCC acted arbitrarily and capriciously – that the D.C. circuit judges accepted today.

There is at least one key difference between the March FCC ruling, which was challenged by Indian tribes, and its August/September rulings. The March ruling directly involved federal environmental and historical preservation law, and the August/September rulings did not. The D.C. judges said “we owe no deference to the FCC’s interpretations of the [National Historic Preservation Act and National Environmental Policy Act]” because those laws are administered by another agency. On the other hand, they allowed as how “the FCC is entitled to deference to its reasonable interpretations of ambiguous provisions of the Communications Act”.

A major similarity between the two cases is the contention that the FCC didn’t do its homework, instead deciding in advance what the new rules should be, and then going through the motions of public review and comment before writing an argumentative ruling to justify what it intended to do in the first place. The D.C. judges agreed…

The Commission failed to justify its determination that it is not in the public interest to require review of small cell deployments. We therefore grant the petitions in part because the Order’s deregulation of small cells is arbitrary and capricious. The Commission did not adequately address the harms of deregulation or justify its portrayal of those harms as negligible. In light of its mischaracterization of small cells’ footprint, the scale of the deployment it anticipates, the many expedients already in place for low-impact wireless construction, and the Commission’s decades-long history of carefully tailored review, the FCC’s characterization of the Order as consistent with its longstanding policy was not “logical and rational.”

The ninth circuit judges in San Francisco will decide the challenge to the August and September decision on their own. It’s worth noting, though, that the D.C. circuit is generally reckoned to be more accepting of agency discretion than the ninth circuit. That was one of the reasons that the FCC colluded with wireless carriers to try to move the case elsewhere. If the D.C. judges didn’t accept the FCC’s sophomoric arguments, there’s even less chance that the San Francisco judges will.

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

Update: FCC limits the extent of its pole ownership preemption, as it tries to defend it against appeals

by Steve Blum • , , , ,

Update, 9 August 2019.

In its brief, the FCC backed down from what appeared to be a blanket assertion that all publicly owned property within the public right of way is the same thing as the public right of way. This preemption of local property rights only applies “when the property in question is controlled by the same government entity that controls the rights-of-way”, the brief said.

By that reasoning, if a city owns a light pole along a road controlled by a state agency such as Caltrans, it can charge a mobile carrier as much as it wants to use it. But the rent for another city pole, located just around the corner on a side street maintained by the city, would be limited to $270 a year. And that’s just a simple example. California has a complex web of jurisdictions, with federal, state, county, city, special district and tribal authority constantly overlapping.

The FCC brief also goes through considerable legal contortions to extend its preemption to publicly-owned electric utilities, even if those utilities don’t control the right of way in question. I’m still trying to unravel that.

Whatever else the FCC thinks it’s doing, it is not making things simpler for cities or mobile carriers.


The Federal Communications Commission defended its sweeping preemption of local government property rights, permitting authority and control of the public right of way in a (not so) brief filed last night with the San Francisco-based ninth circuit federal appeals court. Click here for the full set. At first glance, it appears to restate previous arguments made in its original orders and in subsequent court proceedings. It’s 187 pages, with nearly 700 pages of back up documents. I’ll have a summary on Monday, but if there are hidden gems I’ll post an update.

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