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.