Tag Archives: small cells

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

by Steve Blum • , , , ,

Grinch

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 • , , , ,

Powerlines

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.

Another bipartisan bill preempting local ownership of streetlight poles lands in U.S. senate

by Steve Blum • , , , ,

Despite promises to work with local government representatives to develop less onerous language, a bill to preempt local ownership of streetlight poles and other municipal property that is 1. located in the public right of way and 2. coveted by wireless broadband providers was re-introduced in the U.S. senate with no significant changes. S.1699 is sponsored by the same bipartisan team of John Thune (R – South Dakota) and Brian Schatz (D – Hawaii) that pushed it last year.

It’s still called the Streamline small cell deployment act. It would use the same formulas to calculate rental rates for poles owned by cities and counties that are used to allocate costs between telecoms and electric companies that share utility poles. In California, that rate is generally in the range of $25 – plus or minus several bucks – per foot of occupied pole space per year. It would apply to “a facility in a right-of-way owned or managed by the State or local government for the placement, construction, or modification of a small personal wireless facility”.

The bill also sets shot clocks ranging from 60 days to 150 days for small cell permit processing, whether or not a proposed facility is in the public right of way. The shot clocks would have “deemed granted” teeth…

If a State or local government or instrumentality thereof has neither granted nor denied a request within the applicable timeframe…including any temporary waiver granted under [the terms of this bill], the request shall be deemed granted on the date that is 31 days after the date on which the government instrumentality receives a written of the failure from the applicant.

Along with federal courts, the Federal Communications Commission would get the job of enforcing shot clocks and arbitrating rental rate and fee disputes. In many ways, the bill tracks with last year’s FCC order that similarly seeks to override local ownership of streetlight poles and such, with two major differences: by comparison with S.1699 (but not with the market) the FCC was more generous with rental rates, setting a “safe harbor” figure of $270 per pole per year, and the U.S. congress has the unambiguous power to preempt ownership of municipal assets within certain limits, while the FCC does not.

The first stop for S.1699 is the U.S. senate’s commerce, science and transportation committee. Thune chairs that committee and Schatz is ranking democrat. That was the case with last year’s bill too.

Court says appeal of FCC local pole ownership preemption will continue

by Steve Blum • , , , ,

Tmobile small cell riverside

The ninth circuit federal appeals court ruled that challenges to last year’s Federal Communications Commission’s wireless and wireline preemption orders will move forward. The FCC will have to deliver its administrative record to the court next month, and the initial exchange of arguments from both sides will begin in June and run through September, according to an earlier ruling that two appellate justices confirmed yesterday.

Local challenges to FCC streetlight preemption order move ahead

by Steve Blum • , , , ,

Charlottesville streetlights

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.

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.

It’s still a messy set of cases. A consensus statement filed before the case management conference by all the litigants tends to confirm the allegation that the FCC colluded with mobile carriers in a judge shopping play. The “industry petitioners” – AT&T, Verizon, Sprint and Puerto Rico Telephone Company – are lined up on the FCC’s side…

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.

However, optimism about the case appears to be dying at the FCC. “It seems increasingly likely that the courts will return some part of our small cell infrastructure decisions back to this agency with a remand”, commissioner Jessica Rosenworcel wrote in a comment endorsing the FCC’s latest preemption attempt. Translation: it’s not looking good for our team.

A schedule that gets the initial legal skirmishing out of the way by September is a positive step. The next question to answer is whether the FCC’s stalling tactics will succeed in derailing it.

Cities have broad authority over wireless facilities, California Supreme Court rules

by Steve Blum • , , , ,

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.

An earlier appellate court decision ruled that cities can set aesthetic standards for wireless facilities because 1. section 7901 of the California public utilities code says telecoms infrastructure can’t “incommode the public use of the road or highway”, and 2. the visual impact of ugly equipment falls within the dictionary definition of incommoding.

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.

California Supreme Court majority opinion, T-Mobile West v. City and County of San Francisco, 4 April 2019.

First District, California Court of Appeal, T-Mobile West v. City and County of San Francisco, 15 September 2016.

California Supreme Court expands local control of wireless facilities, allows cities to set aesthetic standards for cell sites

by Steve Blum • , , , ,

Tmobile small cell riverside

UPDATE here.

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…