Tag Archives: ab57

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.

Wireless permit shot clocks aren’t really shot clocks, fee limits aren’t really limits, FCC tells appeals court

by Steve Blum • , , , ,

Riverside pole mount

The FCC wants to stall a federal appellate court review of its order preempting local ownership of street light poles and similar municipal assets located in the public right of way. Dozens of cities, counties and associations pushed back against the move, telling the court they would face “significant hardships” if their appeal was iced for months while the FCC pretends to reconsider its original ruling at its leisure.

There’s no hardship, the FCC told the San Francisco-based ninth circuit federal appeals court in its reply. Reiterating arguments it made when it successfully beat back the cities’ request for a judicial stay of the new rules, the FCC said its shot clocks and fee limits are just guidelines, and it’s not actually ordering local governments to do anything…

The Order thus does not compel a locality to take any action unless “a court of competent jurisdiction” independently orders the locality to do so after affording it full legal process and taking into account all relevant facts and circumstances.

Nor is there any reason to assume that, should any disputes arise, localities would necessarily lose such cases. Fees exceeding the Order’s safe harbors “may be permissible if the fees are based on a reasonable approximation of costs and the costs themselves are objectively reasonable.” Similarly, if particular localities are unable to act within the new shot clocks, they may “rebut the presumptive reasonableness of the shot clocks based upon the actual circumstances they face.” Localities thus may continue to charge any fees necessary to cover the full amount of their reasonable and actual costs, and may continue to take as long as reasonably necessary to review new siting applications, simply by explaining why these practices are necessary or appropriate under the particular circumstances they face.

California law also offers local agencies safe harbors, of a sort. The California legislature set 90 and 150 day shot clocks for wireless permit reviews when it passed AB 57 in 2015. Unlike the FCC’s, those shot clocks have teeth – if time expires, permits are “deemed approved”. In theory (it hasn’t been tested yet) it offers a faster path to a wireless permit than a lawsuit.

Two Californian ballot initiatives – propositions 218 and 26 – already limit local government fees to actual expenses, and cities and counties have established procedures for figuring it all out. Even AT&T has acknowledged that Prop 26, particularly, is as good a safe harbor as the FCC figures.

The big problem with the FCC’s September ruling is the way it treats municipal property. The FCC brushed aside common sense and its own previous rulings (do not confuse the two) when it said cities and counties don’t own assets they’ve built in the public right of way – things like traffic signals or street light poles. Instead, the FCC believes that locally owner property is actually part of the public right of way, and can’t be rented out at market rates. Unlike, say, an identical structure two feet away on publicly (or privately) owned land.

Wireless carriers are using the FCC’s ruling as a blunt instrument in negotiations with cities and counties. Even so, the FCC is correct up to a point: there will be no irreparable harm so long as local agencies refuse to be bullied.

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

“Significant hardships” will fall on cities if appeals of FCC pole ownership preemption stall, court told

by Steve Blum • , , , ,

The cities and counties that are challenging the Federal Communication Commission’s preemption of local ownership of streetlight poles and other assets located in the public right of way don’t want any delays in their cases. In filings yesterday with the ninth circuit federal appeals court in San Francisco, local agencies objected to the FCC’s request to put everything on hold while it thinks about whether it’s going to reconsider its decision. Which could take months, or longer.

The primary objections came from a large group of agencies led by the City of San Jose. Pointing out that the FCC’s “September order” is already in effect and commissioners are bragging about, the group said it’s now in the court’s hands

There is no evidence suggesting the September Order is anything other than the final result of its decision-making process. The FCC continues to publicly stand by the September Order as adopted. Commissioner Brendan Carr, who has been leading the FCC’s infrastructure efforts, recently highlighted the September Order in a February 5, 2019 speech, asserting that the agency was “not going to slow down” in its infrastructure efforts, and that the September Order (which had at the time been effective for only 22 days, and then only in part) was already impacting local government practices and wireless deployment. There is no reason, therefore, to suppose that further delay will somehow actually resolve the issues raised in these appeals, or that the September Order on appeal here is anything other than the “final administrative work.”

Flanking objections were entered by the City of Huntington Beach and a smaller group led by the City and County of San Francisco. Accusing the FCC of being “at worst disingenuous”, San Francisco said that the September order imposes “real, concrete hardships” on local governments…

Some Municipal Parties, consistent with state law and with prior court precedent, charge rent-based fees for commercial use of municipal property. San Francisco, for example, has licensed access to hundreds of its streetlight poles and transit poles for small cell facilities at an agreed-upon rate in excess of $4,000 per year. Demand for access to those poles has continued unabated since the FCC issued the Order. Further, many of those licenses have reached the end of their first year and must be renewed for the agreed-upon license fee. Again, while the Order is in effect, a local government must either comply (e.g., charge only cost-based fees at or below the Order’s presumptive thresholds) or risk litigation over its actions on every wireless siting application it receives, or at renewal of any existing license agreement.

The FCC order took direct aim at agencies like San Francisco that charge what it, and its mobile carrier friends, consider to be exorbitant. As far as the FCC is concerned, $270 per year is sufficient.

For now, the ninth circuit hasn’t ruled on the FCC’s request and the cases are still moving forward.

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

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.

FCC tries to stall court challenges to its local pole ownership preemption order

by Steve Blum • , , , ,

Wjl thruway

The Federal Communications Commission asked the federal appeals court in San Francisco to put cases filed against it by local governments on hold.

Dozens of cities, counties and associations sued the FCC, challenging its preemption of local ownership of street light poles and other assets in the public right of way. Several have also asked the FCC to reconsider its September decision, which is a routine administrative request that is routinely denied. But the FCC hasn’t done anything with it yet, and is using its own inaction as an excuse to stall the court case.

The FCC told the ninth circuit federal appeals court in San Francisco that waiting until it’s figured out what to do will make the judges job simpler or more complicated or something…

The FCC’s proceedings on reconsideration may simplify judicial review—either by resolving issues that the Court would otherwise need to address, or by providing additional analysis on issues that ultimately remain in dispute. Equally important, because the agency’s disposition of a petition for reconsideration may give parties a new opportunity to challenge the Order, either in this Court or in another court of appeals where venue lies, allowing the agency to address the petition for reconsideration before these cases proceed would mitigate the possibility of piecemeal (and possibly inconsistent) judicial review.

There’s no indication of how long the FCC wants keep the case on ice. It only promised to check in with the court every couple of months. According to the FCC, local agencies don’t want the case stalled, while the mobile companies who are accused of colluding with the FCC to game the system are happy to let it gather dust for as long as it takes. Forever would probably suit them.

The FCC also asked the ninth circuit to bundle all of the dozen or so separate challenges into a single case. That seems to be less controversial – it’s standard operating procedure in these circumstances – but it’s possible objections could be raised.

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

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.

FCC colluded with mobile carriers to “game” judicial procedure, congressmen charge

by Steve Blum • , , , ,

Charlottesville streetlights

People at the Federal Communications Commission might have leaned on AT&T, Verizon, Sprint and the Puerto Rico Telephone Company to go shopping for sympathetic judges who would be more likely to bless its preemption of local ownership of streetlight poles and similar municipal assets. A letter sent by a pair of democratic congressmen – Frank Pallone (D – New Jersey) and Mike Doyle (D – Pennsylvania) – directs republican FCC chairman Ajit Pai to enlighten them on why the four wireless companies filed largely identical and completely ludicrous appeals of its September order

It has come to our attention that certain individuals at the FCC may have urged companies to challenge the Order the Commission adopted in order to game the judicial lottery procedure and intimated the agency would look unfavorably towards entities that were not helpful. If true, it would be inappropriate for the FCC to leverage its power as a regulator to influence regulated companies to further its agenda in seeking a more friendly court. To date, four FCC licensees have petitioned the federal judiciary for review of the Order in separate filings and in separate circuits.

Whether or not the four mobile carriers colluded with friends at the FCC to find a friendly court, in the end it didn’t matter. The City of San Jose completed a legal Hail Mary pass and got the all the cases sent to the ninth circuit federal appeals court in San Francisco, which tends to take a more skeptical view of FCC authority.

The mobile companies, which claim the FCC committed a grievous error by not giving them the pink slip along with the keys to the city, are still in a position to disrupt the appeals launched and joined by dozens of cities, counties and associations from every corner of the U.S. To head that off, local governments are asking the ninth circuit to hold a “case management conference”…

Because this case involves appeals by representatives of industry (which argue that the agency did not go far enough in adopting remedies sought by industry) and representatives of local governments and organizations (which argue the FCC’s actions significantly exceeded the agency’s authority), there is also likely to be a more complex pattern of briefs filed in support of, and in opposition to the FCC’s Order than is reflected in a typical agency appeal.

Right now, nine cases – three filed by mobile carriers and six by local governments – are in the San Francisco court, with four more – one by AT&T and three by local governments – apparently inbound from the federal appeals court in Washington, D.C.

Not much room for mediation in appeals of FCC local pole preemption order

by Steve Blum • , , , ,

Burlingame poles

The challenge to the Federal Communications Commission’s September Order preempting local ownership and control of municipal property grinds on. The local governments and companies appealing the order, which strips cities and counties of ownership rights to streetlight poles and other such assets in the public right of way, filed brief statements –mediation questionnaires – with the San Francisco-based federal appeals court hearing the case yesterday.

Mobile companies are appealing the order because, they say, the FCC didn’t go far enough and give them everything they wanted. It would be overly optimistic to say the likelihood of the courts agreeing with them is slim. But by filing their appeals, they get a seat at the table so they can, presumably, disrupt the cases brought by local governments.

In its questionnaire, Verizon repeated its amazing argument that the FCC isn’t allowed to not automatically allow it to attach wireless equipment to city poles if the review process takes too long – in other words, if the “shot clocks” expire…

In the underlying Order, the FCC considered state and local regulatory barriers to the wireless infrastructure siting review process, particularly the siting of next-generation infrastructure. The FCC’s refusal to implement the “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.

Huntington Beach, on the other hand, restated the basic argument it and other local governments have made – that the FCC doesn’t have the authority to confiscate local property…

The Order significantly limits the rights of state and local governmental entities such as Petitioner, City of Huntington Beach, to regulate, and lease its own property for the installation of Small Wireless Facilities (“SWF”) in the public rights-of-way (“ROW”) and on city-owned streetlights, and traffic signals. SWFs will be installed primarily for the deployment of 5G Wireless Networks. The Order is an unlawful pre-emption of local and state government authority.

In the “other thoughts” box on the form, the City of Seattle added that this isn’t the kind of question that’s suitable for mediation…

Every major wireless service and infrastructure provider, hundreds of communities, and many individuals and associations participated in the Commission proceedings which resulted in the Declaratory Ruling and Third Report and Order that is the subject of this appealed. We do not believe it possible that this matter can be resolved through mediation owing to the nature and scope of the issues at hand and the numerous participants.

Mediation, or at least considering it, is a standard step in a federal appeals case. Given the scope of the issues involved and the necessary process at the Federal Communications Commission, it’s a pretty safe assumption that the case will be argued, and not mediated away.

Mediation questionnaires:

City and County of San Francisco
City of Huntington Beach
City of Seattle, et al
Montgomery County

Puerto Rico Telephone Company
Sprint
Verizon

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

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.

Schedule set for appeals of FCC local pole ownership preemption

by Steve Blum • , , , ,

Riverside pole mount

The federal appeals court in San Francisco set 5 April 2019 as the filing date for opening briefs in the nine challenges it’s received, so far, to the Federal Communications Commission’s September order preempting municipal ownership of streetlight poles and other potential wireless assets in the public right of way.

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.

In the meantime, the FCC wireless order is in effect. At least to the extent that it has effect, which is not as much as mobile carriers would like cities to believe.

FCC’s streetlight ownership preemption takes little effect today

by Steve Blum • , , , ,

The Federal Communications Commission’s order preempting local ownership of streetlights and other municipal property in the public right of way is now active. What does it mean to cities? Nothing much, according to a court filing by the FCC

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.”

The FCC made these statements in its successful opposition to a request by a group of local agencies, led by the City of San Jose to put the “September Order” on hold. The federal appeals court based in Denver denied the group’s request last week, saying it “failed to meet their burden of showing irreparable harm if a stay is not granted”.

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.

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

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.

FCC local pole preemption order set to take effect Monday, as federal court denies San Jose’s request to delay implementation

by Steve Blum • , , , ,

The Federal Communications Commission’s preemption of local ownership of streetlight poles and other “vertical assets” appears set to take effect on Monday, 14 January 2019. The tenth circuit federal appeals court in Denver denied a request by the City of San Jose and other cities to put the FCC order on hold while court cases move ahead. In a separate action, the tenth circuit also transferred the long list of appeals to the ninth circuit federal appeals court in San Francisco.

FCC pole preemption appeals leave Denver via loophole, land in San Francisco

by Steve Blum • , , , ,

San francisco skyline 625

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.

It’s good news for cities, counties and other local agencies, and bad news for the unholy alliance of republican FCC commissioners and mobile carriers. In the past, the ninth circuit has taken a more narrow view of what qualifies as an effective prohibition on broadband deployment. That question is central to the case against the September wireless order: the FCC claims its authority to preempt local property ownership is based on a federal law that says that state and local governments can’t “prohibit or effectively prohibit” broadband companies from building infrastructure or offering service.

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.

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

Order transferring appeals of FCC “September Order” to Ninth Circuit, by Tenth Circuit, U.S. Court of Appeals

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.