Tag Archives: pole attachment

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 action, 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.

CPUC orders a do-over on PG&E–Crown Castle pole dispute decision

by Steve Blum • , , ,

White road attachment

A California Public Utilities Commission decision giving Crown Castle the right to work on Pacific Gas and Electric Company’s utility poles without permission, including attaching cables if PG&E doesn’t respond to requests for permission within a set time limit, was reversed on Thursday. Commissioners voted unanimously to send it back to the administrative law judge (ALJ) that originally heard it.

That doesn’t mean the substance of the decision will change, though.

PG&E based its request for a do-over on procedural grounds, claiming the CPUC didn’t follow its own rules for posting a proposed decision and giving the public – including particularly PG&E – the right to offer comments before a vote. Commissioners agreed…

We find that we did not follow the public review and comment requirement on proposed decisions, set forth in [the California public utilities code] and our Rules of Practice and Procedure. We grant rehearing and refer the proceeding back to the [ALJ] in order to serve a new proposed decision on the parties and provide the required public review and comment period (or issue a ruling, if appropriate, reducing or waiving the comment period). PG&E may raise any relevant remaining legal issues in comments to the proposed decision.

The core of PG&E’s legal objections is that the ALJ’s arbitrated decision ignored decades of past commission decisions and ran contrary to established policy for fairly, and safely, regulating the relationship between electric companies that own utility poles and the telecoms companies that use them.

ALJ Patricia Miles isn’t obligated to make any changes to the decision itself, and there’s no reason to think she will. The likeliest next step is for her to repost it with any minor changes to dates and such that might be needed. Thirty days later, or when ever the next meeting after that is scheduled, commissioners can vote again. In between, PG&E will have a chance to ask for changes.

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.

FCC’s pole preemption commandeers City of Whoville, court told

by Steve Blum • , , , ,


Eleven organisations and/or groups of organisations jumped in on the side of challengers to FCC decisions preempting local and state control of public right of way management and ownership of assets, such as streetlight poles, located there.

Five of the amicus curiae – friend of the court – briefs filed with the federal appeals court in San Francisco came from municipal electric utilities and associations representing them. The state of Oregon, an association representing Washington state cities and a group led by New York City offered supporting arguments, and the County of San Diego sent an endorsement letter. The Communications Workers of America and a couple of advocacy organisation filed a brief, as did a tin foil hat group. Links to all are below.

The main arguments they made against the FCC’s pole and right of way preemptions are…

  • State and local governments operate under a complex web of laws that the FCC has no authority to simply override by decree.
  • Federal regulations and state laws require governments to “obtain fair market value” when leasing out public property.
  • Congress specifically barred the FCC from regulating municipal and other publicly owned electric utilities.

Not surprisingly, no one offered support for the bogus challenge ginned up by mobile carriers in a judge shopping effort.

The cutest argument came from the Washington state cities. They accused “Daddy Warbucks’ small wireless company, Warbucks Wireless” of “commandeering the City of Whoville”. Both the Grinch and the FCC have until August to file rebuttals.

American Municipal Power, Inc.
Northwest Public Power Association
Nebraska Municipal Power Pool and Lincoln Electric System
Iowa Association of Municipal Utilities, Minnesota Municipal Utilities Association, Missouri Association of Municipal Utilities and Arkansas Municipal Power Association
Missouri Basin Municipal Power Agency
County of San Diego
Association of Washington Cities
State of Oregon
New York City, NATOA, The International Municipal Lawyers Association (IMLA) and International City/County Management Association (ICMA)
Communications Workers of America, National Digital Inclusion Alliance, and Public Knowledge
Berkshire-Litchfield Environmental Council

Electric companies argue FCC has no authority over power lines

by Steve Blum • , , , ,


Investor-owned electric utilities are challenging the one touch make ready (OTMR) rules issued by the Federal Communications last year. It’s part of a broader appeal of two decisions that the FCC made last year: the August 2018 wireline deployment decision and the September 2018 wireless deployment decision.

In those two decisions, the FCC issued an expansive set of preemptions that overruled local ownership of assets in the public right of way (such as streetlight poles), state and local timelines for wireless permit decisions, schedules for work in the public right of way, and generally took industry-friendly positions on issues that affect the ability of telecoms companies to install facilities – wireline or wireless – at will. All the challenges to both decisions have been bundled into a single proceeding at the federal ninth circuit appeals court, based in San Francisco. Most of the issues were consolidated into a single case, but questions about the legality of the FCC’s OTMR and related utility pole access rules are being handled separately.

Nine privately owned electric companies joined together to try to overturn the FCC’s OTMR rules. The group does not include Pacific Gas and Electric, Southern California Edison or San Diego Gas and Electric, California’s major investor-owned utilities. That’s presumably because California has exercised its option under federal law to regulate utility poles itself – the specific federal rules in question don’t apply here. However, the core arguments made against the FCC’s rules could likewise be made against any OTMR requirements that the California Public Utilities Commission might consider in the future.

The key objection is that the FCC’s new utility pole regulations go beyond its authority over telecoms and encroach – literally and figuratively – on electric utility’s (and state regulators’) domain…

The [August wireline decision] dramatically changed course and created a “self-help remedy” to allow new attachers to use a utility-approved contractor to complete required make-ready work above the communications space (including in the electric supply space), when utilities and existing attachers have not met the FCC’s make-ready work deadlines to perform work preparing a pole for a new attachment…

Because [federal law] limits the FCC’s authority only to matters attendant to “pole attachments” and defines the term “pole attachment” in such a way as to exclude attachments made by an electric utility pole owner, the FCC does not have the authority to regulate any equipment maintained by an electric utility.

Publicly owned electric utilities are also appealing the August and September decisions, but they’re following the same general track as other municipal challengers. In their case they’re also arguing that federal law specifically bars the FCC from regulating them.

AT&T, Verizon, Sprint, PRTC plead their pain of not getting everything they want from Santa the FCC

by Steve Blum • , , , ,

The opening arguments submitted by AT&T, Verizon, Sprint and the Puerto Rico Telephone Company in their appeal of last year’s Federal Communications Commission’s pole ownership preemption decision do little more than lend credence to the allegation that their challenges were launched in collusion with their friends at the FCC in a vain judge shopping attempt.

The 2018 FCC wireless order was a gigabuck early Christmas present to mobile carriers. It gave them the right to use city-owned property in the public right of way, such as street light poles, at below market rates, sharply restricted fees that local government could charge for permits to do so, and limited local discretion over street management and aesthetic standards. And it tightened shot clocks for processing permit applications for (not so) small wireless facilities.

About the only gift the FCC didn’t give mobile carriers was “deemed granted” privileges. Those would have allowed companies to start construction without permission, after shot clocks run out. California has a similar rule, enacted by the legislature, but with more generous time limits.

The FCC has declined to create deemed granted remedies for big, macro cell sites in the past, and the U.S. congress never told them to do it. In a special case created by congress, the FCC did impose a deemed granted remedy, but there’s never been any question that must do so in all cases. If there’s any question, it’s whether the FCC has the general authority to overrule state legislatures in that regard. Nonetheless, the four mobile companies filed an appeal claiming the FCC’s failure to do so was “arbitrary and capricious”.

In their first attempt to justify that claim, the mobile carriers offer page after page of boilerplate 5G hype, and then argued that the FCC’s decision to not give them everything they want had “no rational connection” to the glorious future promised by their eloquent marketing materials.

What the carrier’s intervention did earn them is four tickets in the judicial lottery that determined which appeals court would hear all the challenges, particularly those filed by cities and counties that objected to the substance of the FCC’s preemption order. It worked at first. Sprint’s ticket was pulled and a Denver-based court with a more friendly reputation caught the case. But a legal maneuver by the City of San Jose got it transferred to the ninth circuit federal appeals court in San Francisco, exactly the place AT&T, Verizon and Sprint – and the FCC – were trying to avoid.

FCC’s local pole preemption order based on speculation, ignores substantial evidence, cities tell appeals court

by Steve Blum • , , , ,

The Federal Communications Commission’s preemptions of local property rights – particularly city-owned street light poles – and local rules regulating the use of public right of ways are contrary to federal law and violate the federal constitution, according to arguments submitted to a San Francisco appeals court by dozens of cities, counties and local government associations. In their opening brief submitted on Monday, they made their case for overturning last year’s FCC rulings that swept away state and local land use, road maintenance, property leasing practices and other policies that mobile carriers find bothersome.

The two FCC rulings affect wireless and, to a more limited extent, wireline telecoms providers. All the challenges that resulted were consolidated into a single case that’s now in front of the ninth circuit federal court of appeals.

The local governments’ argument that the FCC’s wireless and wireline rulings are “arbitrary, capricious and counter to the evidence in the record” boil down to two key points:

  • Federal law says state and local governments can’t “prohibit or effectively prohibit” deployment of telecommunications services. Courts – including the ninth circuit – have previously ruled that “an ‘effective prohibition’ may not be based upon the mere possibility of prohibition – an actual prohibition is required”. Local regulations and fees that might make a particular small cell site less convenient or less profitable for a carrier are not a prohibition.
  • “Nothing in the Communications Act gives the Commission authority over non-carrier government property merely because it is convenient to communications providers, or requires a locality to take affirmative action to assist in deployment, either through making its property available, or making it available cheaply”.

The FCC’s claim that it is helping rural communities by preempting urban property rights is equally bogus, according to the local governments’ brief

If a provider obtains reaps greater profits in San Francisco, Eugene or New York City as a result of preemption of those cities’ current right-of-way or infrastructure attachment fees, those increased profits do not make it more attractive or profitable for the provider to invest in deploying infrastructure in rural Mississippi. The Commission’s order does not require any amount of additional profits resulting from the preemption of San Francisco’s or Eugene’s fees to go towards providing service in other areas. Providers are free to use such additional profits to engage in corporate acquisitions, increase shareholder dividends, or repurchase stocks, which the record shows they have done rather than invest in deployment.

The joint arguments filed by local governments, as well as opening briefs filed by mobile carriers and municipal electric utilities, are just the first round in what will what will be months of litigation.

Petitioner Local Governments’ joint opening brief, 10 June 2019
Brief of petitioner the American Public Power Association, 10 June 2019
Petitioner Montgomery County, Maryland’s opening brief, 10 June 2019
Joint opening brief for Petitioners Sprint Corporation; Verizon Communications Inc.; Puerto Rico Telephone Company, Inc.; and At&T Services, Inc., 10 June 2019

Links to petitions, court documents and background material 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.

Opening briefs challenging FCC pole and right of way preemptions filed in ninth circuit

by Steve Blum • , , , ,

Tmobile small cell riverside

Dozens of local governments from across the U.S. filed joint arguments yesterday with the ninth circuit federal appeals court in San Francisco, as challenges to two 2018 Federal Communications Commission decisions move ahead. Mobile carriers and municipal electric utilities also filed opening briefs. I’ll dive deeper into the arguments in the next few days, but you can read them here now:

Petitioner Local Governments’ joint opening brief, 10 June 2019
Brief of petitioner the American Public Power Association, 10 June 2019
Petitioner Montgomery County, Maryland’s opening brief, 10 June 2019
Joint opening brief for Petitioners Sprint Corporation; Verizon Communications Inc.; Puerto Rico Telephone Company, Inc.; and At&T Services, Inc., 10 June 2019

Links to petitions, court documents and background material 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.