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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.

Overturning FCC local pole ownership preemption seems easier in San Francisco

by Steve Blum • , , , ,

The Federal Communications Commission “seeks to redefine the relationship between state and local governments and telecommunications providers” with a new and expansive interpretation of federal law, according to a group of local agencies challenging an order that preempts local ownership of light poles and other municipal property located in the public right of way. The group, led by the City of San Jose, wants the case moved from the federal appeals court in Denver, to the ninth circuit appeals court in San Francisco.

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.

Muni property rights are written into federal law and FCC decisions, North Little Rock tells appeals court

by Steve Blum • , , , ,

Burlingame poles

The case against the FCC’s preemption of local property ownership is taking shape. The first city to ask federal appellate court judges to put the FCC’s September wireless order on hold while legal wheels grind is North Little Rock, Arkansas, in partnership with a Missouri muni utility association.

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.

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

FCC and friends want to keep muni pole ownership preemption challenges in Denver

by Steve Blum • , , , ,

Neither the Federal Communications Commission or mobile telecoms companies want to go to San Francisco to defend the agency’s preemption of local ownership of municipal property in the public right of way. They want to keep the growing list of appeals court challenges to the FCC’s September wireless deployment order in Denver.

In separate, but very similar, rebuttals the FCC and the beneficiaries of its generosity argued that the cases shouldn’t be transferred to the ninth circuit federal appeals court in San Francisco, as requested by the City of San Jose and its partners. San Jose based its claim on the notion that its appeal and the City of Portland’s appeal of an earlier but related FCC ruling (dealing with wireline broadband deployments) were really the same things.

In its filing yesterday, the FCC said that the wireline order and the wireless order

…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.

The list of known challengers to the FCC’s preemption order is also getting longer. The City of Eugene, Oregon (along with two other cities), the City and County of San Francisco, the City of North Little Rock, Arkansas (jointly with a muni utility association), and Montgomery County, Maryland filed their appeals in various federal courts around the U.S. The FCC filing says all are supposed to be consolidated into the Denver proceeding, as will the other cases pending in Washington, D.C.

North Little Rock also took the honor of being the first to formally ask a federal appeals court to issue a stay and put the FCC’s ruling on hold.

Responses to San Jose’s request to move the cases to San Francisco
FCC
Mobile companies and lobbyists
Seattle

New petitions appealing the FCC’s September wireless decision
Eugene, et al
San Francisco
North Little Rock, et al
Montgomery County

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