A federal appeals court commissioner has, for now, set a schedule that sorts out the various challenges to last year’s Federal Communications Commission decisions that preempted local ownership of streetlights and similar infrastructure, and put tight restrictions on how local governments manage public right of ways. Last week Peter Shaw, a commissioner for the ninth circuit federal appeals court in San Francisco, met with attorneys for local agencies and associations that are challenging various aspects of the order, and with lawyers for mobile carriers that are pretending to be upset with the FCC’s decisions, but are actually jumping in on its side.
The result is a schedule that has the final round of written arguments completed in September, which could lead to a decision in 2020.
If the San Francisco appeals court judges allow the cases to move ahead at all. They still have to decide if they’re going to grant the FCC’s request to put everything on hold until the commission gets around to closing out its proceeding.
Some of the Small Cell Appeals were filed by local governments and publicly-owned utilities (the public petitioners), and separate appeals were filed by various providers of wireless services (industry petitioners). Their positions are in opposition, and industry petitioners, as well as certain intervenors, will support the FCC in opposing the public petitioners, and vice versa.
California governor Gavin Newsom’s wildfire “strike force” published its findings on Friday. The report offers suggestions for preventing, or at least reducing, catastrophic wildfires, and for paying for the damage when they do happen. The short answer is spread the costs around.
One of the central concepts floated by the report is to change California’s strict liability standard, which requires electric and telecoms utilities to pay for all wildfire damages if their equipment is involved in starting a fire, whether or not they did something wrong. Instead, the report suggests moving to a “fault-based standard”, where “utilities pay for damage if caused by their misconduct”. If there was no bad behavior on the part of a utility, though, the cost would shift to “insurance companies and uninsured or underinsured property owners”.
Another idea is to have all investor owned electric utilities, and possibly municipal ones, to pay into a fund that would act as an insurance policy of sorts by covering catastrophic wildfire costs. One issue is that the shareholders and ratepayers of lower risk utilities, such as San Diego Gas and Electric, would, in effect, subsidise those served by utilities with higher wildfire risks, such as Pacific Gas and Electric – assuming that a post-bankruptcy PG&E can even afford to participate.
Part of the solution, the report says, is to take advantage of the “opportunity to build a new, responsible, and accountable utility for northern California” created by the bankruptcy proceeding. Although the report mentions breaking up PG&E into smaller regional companies or municipal utilities, it doesn’t say how that can be accomplished, given that federal judges – bankruptcy and criminal – will be making those decisions for the time being. The only suggestion is for the state to “actively monitor and appear in the bankruptcy proceeding” and “be heard”. So far, that seems to be having little effect.
There’s more. Besides the obligatory nod toward cutting greenhouse gas emissions, the report also outlines some obvious measures: reduce wildland fuel loads, improve emergency planning and education, and upgrade firefighting technology and manpower. And it takes a welcome swipe at the predatory bar, listing “attorneys representing victims” as stakeholders who need to bear some of the burden of wildfire damages, presumably by reducing the “substantial” cost of legal fees and expenses.
The CPUC’s decision gives PG&E 45 days to approve or deny Crown Castle’s pole attachment requests. If the shot clock expires, Crown Castle can move ahead without permission and install fiber lines on PG&E poles. It also requires PG&E to keep Crown Castle informed of other attachment requests, but allows Crown Castle to work on its own lines without giving PG&E advance notice, so long as no electrical shutoffs are needed. A few days after the commission unanimously approved those new contract terms, PG&E asked for a rehearing, citing safety concerns.
The decision gave PG&E two weeks to sign the deal, which are long gone. Crown Castle wants the commission to forget about any rehearings and “take all enforcement measures possible, including penalties and other measures” to force PG&E to get on with it. Which is what, it seems, PG&E will have to do. Wednesday’s letter from CPUC executive director Alice Stebbins said there will be no delay because “merely making a general statement of irreparable harm and referencing the filing of an application for rehearing are insufficient grounds for me to grant the requested extension”.
In a landmark decision, the California Supreme Court gave cities a major victory today, ruling that the way San Francisco regulates the appearance of wireless facilities is legal, and isn’t preempted by state law or California Public Utilities Commission regulations. Its interpretation goes beyond lower court decisions and adopts a narrower view of state-level restrictions on municipal control of telecommunications infrastructure. The unanimous opinion also opened the door to further regulation of cell sites and other telecoms facilities – wired or wireless – by drawing a line between specific limits the legislature put on local oversight of construction activities, and the general ability of cities to set standards for the appearance, placement and, potentially, other aspects of wireless equipment after it’s built.
Today’s California Supreme Court decision endorsed that finding…
Neither the plain language of [public utilities code] section 7901 nor the manner in which it has been interpreted by courts and the PUC supports plaintiffs’ argument that the Legislature intended to preempt local regulation based on aesthetic considerations. The statute and the ordinance can operate in harmony. Section 7901 ensures that telephone companies are not required to obtain a local franchise, while the [San Francisco] Ordinance ensures that lines and equipment will not unreasonably incommode public road use.
But municipal authority goes beyond that, according to the Supreme Court. The ruling said that state law only restricts some of the broad discretion and power that cities have under the California constitution. Cities can’t effectively prohibit telecoms companies from building infrastructure or regulate their operations, but…
The Legislature has not adopted a comprehensive regulatory scheme. Instead, it has taken the limited step of guaranteeing that telephone corporations need not secure a local franchise to operate in the state or to construct local lines and equipment. Moreover, the statute leaves room for additional local action and there are significant local interests relating to road use that may vary by jurisdiction.
Nor does the authority given to the CPUC override local control or responsibilities. The commission regulates “a utility’s relations with its customers”, the decision says, but municipalities “are forbidden from yielding to the PUC their police powers to protect the public from the adverse impacts of utilities operations”…
Consistent with these statutes, the PUC’s default policy is one of deference to municipalities in matters concerning the design and location of wireless facilities. In a 1996 opinion adopting the general order governing wireless facility construction, the PUC states the general order “recognize[s] that primary authority regarding cell siting issues should continue to be deferred to local authorities… . The [PUC’s] role continues to be that of the agency of last resort, intervening only when a utility contends that local actions impede statewide goals … .” The order itself “acknowledges that local citizens and local government are often in a better position than the [PUC] to measure local impact and to identify alternative sites. Accordingly, the [PUC] will generally defer to local governments to regulate the location and design of cell sites … .”
Finally, the Supreme Court said that public utilities code section 7901.1, which puts specific limits on local control of the public right of way, only applies while construction work is going on…
It is eminently reasonable that a local government may: (1) control the time, place, and manner of temporary access to public roads during construction of equipment facilities; and (2) regulate other, longer term impacts that might incommode public road use under section 7901. Thus, we hold that section 7901.1 only applies to temporary access during construction and installation of telephone lines and equipment. Because the City treats all entities similarly in that regard, there is no section 7901.1 violation.
In other words, the requirement that all telecoms companies be treated that same only applies while facilities are being installed. Cities are free to adopt wireless-specific ordinances that apply after construction work is completed.
Bottom line: California cities can set aesthetic standards for cell sites, and have more authority over wireless and wireline infrastructure than they or telecoms companies thought. It’s a comprehensive defeat for T-Mobile, Crown Castle and Extenet, who sued the City and County of San Francisco. They’ll even have to pay San Francisco legal costs.
Although the ruling opens the door to further local regulation of wireless facilities, including stricter aesthetic standards, the extent of that discretion wasn’t defined, and there are still federal preemptions of state and local authority that could apply. But today’s decision gives California cities a green light to test those limits.
My clients are mostly California cities, all of whom are directly affected by this case. I’m not a disinterested commentator. Take it for what it’s worth.
San Franciso’s aesthetic standards for cell sites are legal under California law. The California Supreme Court rejected an appeal by T-Mobile, Crown Castle and Extenet of lower court rulings that allowed the City and County of San Francisco to regulate the appearance of cell sites. The ruling, posted minutes ago, is here. The ruling is broader than the lower courts’ opinions, though, and appears to expand the scope for local governments to control the use of public right of ways and issue permits for wireless facilities. More to come…
The California Supreme Court is about to rule on whether California law allows cities to regulate the appearance of cell sites. It posted a notice earlier today that a decision will be published at 10am tomorrow (Thursday, 4 April 2019). Background on the case is here. The key question: does mobile infrastructure that offends local aesthetic sensibilities “incommode the public use” of the public right of way? A California appeals court said yes, it does. T-Mobile, Crown Castle and Extenet beg to differ. We’ll get the final California word tomorrow. Stay tuned.
PG&E doesn’t like the pole attachment terms Crown Castle was granted by the California Public Utilities Commission, and is asking for a do-over. At its recent meeting, commissioners unanimously approved contract terms decided by a CPUC administrative law judge who was acting as an arbitrator in a dispute between the two companies.
It’s more than just a simple contract dispute, though. Pole route management policy is getting a hard look by the CPUC and by federal courts that are dealing with PG&E’s bankruptcy filing and criminal probation in the wake of deadly fires sparked by overhead lines. PG&E argues that piecemeal decision making will only make things worse.
Crown Castle wanted to attach fiber optic cables to PG&E’s poles, and buy the necessary space instead of leasing it, as PG&E prefers when a company only wants to occupy one vertical foot of pole space. It claimed that being able to buy the space gives it comparable privileges to big incumbents, such as AT&T, that typically buy all of the pole space available – the communications zone – and then manage attachments for all telecoms users.
Both the speed and the substance of the CPUC’s action didn’t sit well with PG&E, which filed a request for a rehearing on Friday. Many of its objections revolve around what it regards as conflicts with the CPUC’s basic rules for managing pole attachments by telecoms companies and other issues involving the use of the public right of way by utilities, which were laid down in a 1998 decision.
Those rules are being reexamined in excruciating detail in a separate CPUC proceeding involving all of California’s major electric and telecoms companies, and many smaller ones. PG&E told the commission that this is a bad time to make decisions on the fly…
In the current environment of the ‘new-normal’ and the imperative to maintain the safety of PG&Es infrastructure these increased and expedited access and attachment terms are imprudent. Such increased access affects safety, which is a concern of the public, the CPUC, and both electric and telecom utilities. All parties need time for full exploration of requirements and risks that would be the outcome of such changes.
Pole route safety is a complicated, high stakes issue in California right now. After two years of massive wildfires started by overhead electric lines that killed dozens of people and caused billions of dollars of damage, everything is on the table, including a possible state takeover of electric utilities. At the same time, fiber construction is accelerating to support upgrades of residential, commercial and mobile broadband service. Speed matters for both, but optimal decisions for either often run in opposite directions. Ad hoc tinkering, like the PG&E/Crown Castle decision, will make the problem worse. The better course is for the CPUC to focus its resources on the bigger proceeding and wrap it up in a timely manner.
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.
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.
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.
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.
Pacific Gas and Electric won’t face criminal charges for its role in starting several northern California fires in 2018. District attorneys in Sonoma, Napa, Humboldt and Lake counties announced that they can’t prove a case. According to a press release from Sonoma County district attorney Jill Ravitch, the necessary evidence burned up along with everything else…
The cases that were referred for prosecution all required proof that PG&E acted with criminal negligence in failing to remove dead and dying trees. Under California law, criminal negligence requires proof of actions that are reckless and incompatible with a proper regard for human life, and any charges must be proven unanimously to a jury beyond a reasonable doubt. Proving PG&E failed in their duty to remove trees was made particularly difficult in this context as the locations where the fires occurred, and where physical evidence could have been located, were decimated by the fires.
Last year, Cal Fire determined that some of the many fires that roared through California’s wine country began when trees or other vegetation came into contact with PG&E electric lines. The deadliest fire – the Tubbs fire – which killed 22 people and spread as far as city neighborhoods in Santa Rosa, was not linked to PG&E’s equipment according to Cal Fire. That one was apparently started by electric lines strung across private property by the landowners.
So far, prosecutors in other counties affected by fires linked to PG&E infrastructure have declined to charge PG&E with crimes. But that’s cold comfort. Ravitch was careful to point out that “PG&E remains on federal criminal probation and is a defendant in many private civil cases arising out of the wildfires”, including one that the County of Sonoma is pursuing. The combined liability PG&E faces from those fires as well as last year’s even deadlier Camp Fire is expected to top $30 billion. Who gets paid and how much is now in the hands of a federal bankruptcy court.