Tag Archives: small cells

FCC illegally “asserts federal control over municipal utility structures”, court told

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The City of San Jose briefly explained its case against the Federal Communications Commission in a filing with the federal appeals court in Denver last week. San Jose, Los Angeles County and eighteen other western cities joined together to challenge the FCC’s decision to preempt local ownership of streetlights, traffic signals and other municipal property that’s located in the public right of way.

Six other challenges were filed – two by local agencies and associations that represent them, and four by mobile operators who think the FCC wasn’t generous enough. The cases were lodged in several different federal appeals courts around the country, and then were consolidated, via a lottery, in the tenth circuit court of appeals in Denver.

AT&T’s appeal was filed in Washington, D.C. but wasn’t included in the first round of consolidation. Last week, the FCC asked that it be moved to Denver, too, and AT&T didn’t oppose the request.

San Jose told the court…

On Sept. 26, the Federal Communications Commission issued a Declaratory Order and Report and Order…that, among other things: reinterprets key statutory terms…and which establishes new deadlines for action on applications for “small wireless facilities.” Many local governments, including Petitioners, objected to the FCC’s proposals on both legal and policy grounds, and submitted substantial legal, economic, and policy evidence into the underlying record never addressed by the agency.

Among other things, the Order abrogates an en banc plain language decision of the Ninth Circuit interpreting [those key statutory terms]; requires states and localities to lease facilities not generally dedicated to public use to certain wireless companies at out of pocket costs…asserts federal control over municipal utility structures; shortens time for action on wireless applications in a way that is designed to prevent public participation; and sets a federal standard for aesthetics without authority. Petitioners dispute the ruling on statutory and constitutional grounds, and also argue that it is, inter alia, arbitrary, capricious, an abuse of discretion and otherwise contrary to law.

The second group of cities and other organisations, which is led by the City of Seattle, hasn’t offered its initial argument yet, nor has the City of Huntington Beach, which launched a solo appeal.

Verizon, Sprint and Puerto Rico Telephone have, though. Verizon’s litigious trolling is typical, claiming that the FCC completely blew it because it didn’t go far enough…

The FCC’s refusal to implement a “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, the Commission’s own regulations, and the United States Constitution; and it is otherwise contrary to law.

AT&T’s initial filing made a similar claim, so it’ll be no surprise if it follows Verizon’s lead. The federal appeals court in Denver hasn’t set a schedule for further proceedings yet.

The FCC’s order is scheduled to take effect on 14 January 2019. The logical next step for the municipal challengers is to ask the court to put it on hold, until the cases are heard.

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

Denver court will hear appeals of FCC decision to preempt local control over poles, wireless permits

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A federal judicial panel decided on Friday to consolidate at least six of the seven appeals filed by local governments and wireless carriers against an FCC ruling that attempts to set sweeping new small cell permit and leasing rules for local and state governments. Yesterday, the court given the job – the tenth circuit of the U.S. court of appeals, based in Denver – issued instructions to the challengers, essentially telling them to get their paperwork in order and stand by for further instructions.

Three of the appeals were launched by west coast cities, counties and their associations. They object to the sharp limitations that the FCC wants to put on their standards, procedures and fees for small wireless facility permit applications, and to the FCC’s declaration that they can’t control property they own in the public right of way, such as street light poles and traffic signals.

According to the FCC, cities have to allow wireless carriers to attach equipment to street light poles more or less at will, and only charge $270 per pole per year for the privilege. The Californian average for municipal pole leases is between $500 and $900 per year, with many Bay Area cities beginning to come to a consensus around the $1,500 per year figure.

The other four appeals were filed by wireless carriers: AT&T, Verizon, Sprint and the Puerto Rico Telephone Company (PRT). They think the FCC’s ruling didn’t go far enough – they want all the marbles, not just most of them. Verizon’s appeal surfaced at the end of last week. I’m not sure exactly what happened, but it appears that there was some kind of paperwork glitch that delayed its release. There’s no substance to it yet; Verizon simply asked the federal appeals court in New York to review the FCC ruling.

Because the seven appeals were spread over five federal appellate districts, a judicial panel held a lottery to decide where they’ll all come together. The Denver court’s name was drawn. It’s where Sprint’s case was filed. As of last night, it’s assigned the appeals filed by the local agencies, Sprint, Verizon and PRT. AT&T’s appeal, which was filed in the District of Columbia, isn’t included yet.

A similar drawing was held earlier this year when several groups appealed the FCC’s decision to repeal network neutrality rules. The initial winner was the San Francisco-based federal appeals court, but the cases were eventually moved back to Washington, D.C. by mutual consent. There’s no indication yet if something like that is in the works for these wireless preemption appeals, or where AT&T’s case will land.

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

Western cities line up against FCC muni property grab

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There must be something in the salt air coming off the Pacific Ocean. Only local agencies on or (relatively) near the west coast asked a federal appeals court to block the Federal Communication Commission’s decision to preempt local ownership of streetlights and other municipal property that’s planted in the public right of way. Contrary to my prediction, the rest of the U.S. is sitting it out. I checked the websites of the federal appeals courts around the country, and didn’t find any new challenges.

Twenty-two cities, two counties and three state-level League of Cities organisations joined the three lawsuits filed in the San Francisco-based ninth circuit court of appeals last week. The roll of honor is…

  • City of Yuma, Arizona
  • League of Arizona Cities and Towns
  •  
  • City of Arcadia, California
  • City of Burlingame, California
  • City of Culver City, California
  • City of Huntington Beach, California
  • City of Los Angeles, California
  • City of Monterey, California
  • City of Ontario, California
  • City of Piedmont, California
  • City of San Jacinto, California
  • City of San Jose, California
  • City of Shafter, California
  • Los Angeles County, California
  • Town of Fairfax, California
  • League of California Cities
  •  
  • City of Las Vegas, Nevada
  •  
  • City of Portland, Oregon
  • League of Oregon Cities
  •  
  • City of Bellevue, Washington
  • City of Burien, Washington
  • City of Gig Harbor, Washington
  • City of Issaquah, Washington
  • City of Kirkland, Washington
  • City of Seattle, Washington
  • City of Tacoma, Washington
  • King County, Washington

I did find one more telco that jumped on the greedy wagon: the Puerto Rico Telephone Company joined AT&T and Sprint in asking appeals courts to automatically give them the privilege of hanging their equipment on poles – whether they own them or not – if a city takes too long to process a permit application. Those petitions were filed in Boston, the District of Columbia and Denver, respectively.

It’ll take a few days, maybe a week or two, for the federal court system to decide if and where the cases will be heard together. Harold Feld has an excellent explanation of how that works here. It might ultimately be done by a lottery, or by mutual agreement or it’s possible that the telcos’ appeals will be heard separately from the local agency ones.

Links to the all the petitions and background documents are here.

Cities pile onto appeal of FCC pole preemption decision, AT&T doubles down on greedy

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Cities and counties across the western U.S. are challenging the Federal Communications Commission’s ruling that preempts local ownership of street lights, traffic signals and other assets located in the public right of way.

AT&T and Sprint, on the other hand, appealed the FCC’s decision, claiming it didn’t go far enough. Links to the petitions are below.

League of Cities organisations from Arizona, California and Oregon, along with the cities of Seattle and Tacoma, and King County in Washington filed a challenge in the ninth circuit court, which is the San Francisco-based federal appellate court that handles cases from the west coast and some mountain states. A second joint petition was filed by 20 local agencies from Washington, Oregon, Nevada and Arizona, as well as California. The City of Huntington Beach, in southern California, filed a separate challenge.

The City of San Jose is the lead agency for the second group. They’re asking the court to throw out the FCC’s decision

The Ruling exceeds the FCC’s statutory authority; is arbitrary and capricious and an abuse of discretion; and is otherwise contrary to law, including the Constitution of the United States. The Petitioners respectfully request that this Court hold unlawful, vacate, enjoin, and set aside the Declaratory Ruling; and grant such other relief as it may deem appropriate.

That’s pretty much the substance of all three petitions that ask the ninth circuit to block the ruling.

Amazingly, the wireless carriers are claiming the FCC fumbled the ball because its ruling didn’t give them absolutely everything they wanted. In a filing with the District of Columbia appeals court, AT&T said the ruling is “arbitrary, capricious, inadequately reasoned, or otherwise contrary to law”, because it doesn’t automatically grant them the right to install their equipment on publicly-owned light poles if the FCC’s shot clock expires before a city makes a final decision. For existing structures, such as light poles or traffic signals, it’s a 60 day shot clock; new poles or towers have a 90 day shot clock. Sprint filed similar arguments with the tenth circuit in Denver.

(California already has a “deemed approved” law for wireless permits – assembly bill 57 – which was passed by the legislature in 2015. How it interacts with the FCC’s attempt at preempting local property rights, and other aspects of the ruling, is a question yet to be untangled).

At this point, these petitions are little more than a ticket in a judicial lottery that will decide which appeals court hears the cases. I haven’t tracked down any others yet, but it’s a good assumption that more local governments in different federal appellate court districts are also in the game. Verizon and T-Mobile and possibly other companies might have filed petitions elsewhere, too. It’ll take a couple of days for the dust to settle.

A similar situation arose earlier this year when organisations in various parts of the U.S. challenged the FCC’s decision to roll back network neutrality. The resulting lottery gave the case to the ninth circuit, but then a deal was cut to take it back to Washington, D.C. That’s where many of the big guns in the case live and where the appeals court has a lot of experience dealing with FCC matters in general, and net neutrality in particular.

The same might happen with this case. Might. On the other hand, there are other issues on the table, like property law and state authority, so there’s a reason for cities to try to get it heard on their home turf.

Once the case has found a home, expect local agencies to ask the court to put the FCC ruling on hold until it’s decided. The FCC’s ruling is supposed to take effect on 15 January 2019. The FCC’s attempt to overrule local property ownership is radical enough to be 1. challenged with a plausible chance of success, 2. disruptive if it’s enforced and 3. difficult to unravel if it’s eventually overturned. That could be enough to convince federal appellate judges to slow it all down.

Update 29 October 2018, 13:51: A sixth challenge was filed by the Puerto Rico Telephone Company. It makes the same I want it all argument as AT&T and Sprint. The petition was filed in the first circuit, which is based in Boston and is the designated federal appeals court for Puerto Rico. I checked the websites of all the federal appellate courts, and could only find six challenges. More might be filed later, but last week was the deadline for getting in on the “lottery”. It’s looking like a 50/50 chance the cases will be heard in San Francisco.

Petitions asking appeals court to block FCC wireless ruling, 24 October 2018

Leagues of Cities (Arizona, California, Oregon), City of Seattle (lead), City of Tacoma, King County, Washington
City of San Jose (lead), County of Los Angeles and 18 other cities in Arizona, California, Nevada, Oregon and Washington
City of Huntington Beach, California

Petitions asking appeals court to add “deemed granted” privileges to FCC wireless ruling, 25 October 2018

AT&T
Sprint
Puerto Rico Telephone Company

Links to all documents relating to the FCC’s preemption of local permitting discretion, right of way authority and pole ownership

Cities challenge FCC’s wireless big foot, AT&T tells court it isn’t big enough

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Cities and counties in western states, and their lobbying organisations, asked the federal appeals court in San Francisco to block a ruling by the Federal Communications Commission that would take away most local authority over small cells and other wireless facility permits, and preempt ownership of municipal assets, such as streetlight poles, in the public right of way. Links to all the documents filed last week are here

AT&T and Sprint also challenged the FCC’s decision, because, they say, it didn’t go far enough. They want to be automatically granted the right to attach their equipment to existing poles if cities take too long to reach a final decision on permits – 60 days for attachments to existing poles, 90 days for new ones.

I’ll post a deeper dive into all of this tomorrow morning.

FCC preemption of local street pole ownership takes effect in January

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The Federal Communications Commission wasted no time in publishing its new rules regarding how cities and counties can regulate (or, really, not) small wireless facilities in the federal register. That means most of the rules take effect on 14 January 2019, unless one of the promised lawsuits materialises and a court puts everything on hold.

The new rules don’t force local governments to do anything – the FCC doesn’t have authority. But state and federal courts do, and the intent is to set standards that judges will apply when settling disputes between wireless companies and local agencies.

From the FCC’s point of view, when the rules take effect, local governments will have to give mobile carriers and, perhaps, other wireless companies open access to street light poles, traffic signals and any other municipal property in the public right of way. The most the FCC thinks a city can charge for leasing out that space is $270 per year.

One time permit fees are supposed to be limited to recovering processing costs. The FCC thinks those should be capped at a total of $500 for all required permits, for up to five installations. California already has a law in place – proposition 26, passed in 2010 – that limits permit fees to actual costs, and cities and counties here have established processes for calculating them. In theory, that should take precedence over the FCC’s safe harbor number, but that’s still to be determined.

Annual lease fees are also supposed to be cost based, so the FCC’s $270 limit isn’t necessarily the final word. A lot depends on how those costs are defined and calculated. If it’s done via the same method that’s used to determine annual charges for attaching wireless equipment to privately owned utility poles, it might be less – in California, that cost is typically in the range of $25 per foot of occupied pole space per year. On the other hand, thanks to proposition 26, California cities and counties also have tested methods for determining actual costs, which might produce a higher figure.

Although the rules take effect in January, local governments can take an extra 90 days to figure out new aesthetic standards, which the FCC says must be published and be “no more burdensome than those applied to other types of infrastructure deployments”.

Stalled federal bill preempting local pole ownership, authority gets a push

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Congress might jump into the tug of war between the Federal Communications Commission and local governments over control of municipal property located in the public right of way. According to a story in Politico, the chairman of the federal senate’s commerce committee, senator John Thune (R – South Dakota) wants to move his small cell preemption billS. 3157 – ahead as the current congressional term winds down.

As originally drafted, S. 3157 tracks closely with the “small wireless facility” preemption ruling issued last month by the FCC. Permit application review times would limited, in some cases to as little as two months. The bill goes beyond the FCC’s plan and says that any permit that hasn’t been approved or denied before the shot clock runs out is automatically granted.

The bill also limits the amount that cities and counties can charge to lease out poles they own. Lease rates would be calculated using the same formula used to split utility pole costs between electric utilities and telecoms companies. In California, a typical rate is $25 per year per foot of space occupied on a pole. The net result would likely be rental rates below even the $270 a year that the FCC considers reasonable. That compares to the Californian average, which runs between $500 and $900 per pole per year.

Politico says that Thune wants to bring local governments on board with his bill, but he’s having a hard doing that…

The measure faces opposition from several organizations representing local and state governments. “I don’t know if they’re ever going to get on and fully endorse this,” Thune told reporters on Thursday. “I think in the end it’ll be hard, unless the cities get to a better comfort level than where they are today, it would be hard to advance the bill just because they have obviously a lot of influence with senators.” He said his staff continues to negotiate with an eye toward finding consensus and says a hearing is a good idea in any case “because I think we need to elevate the issue.”

A federal law has a lot more impact than an FCC ruling. As it stands now, the FCC can’t order a city to lease out a pole or issue a permit. It can only establish standards that judges might or might not use to settle disputes between cities and mobile carriers. And its authority even to do that is in question – last month’s FCC decision faces years of litigation before its effect is fully known.

Congress, on the other hand, does have the power to preempt state and local authority when communications and interstate commerce is involved, and delegate the job to the FCC.

FCC backs off on timing, but not substance of municipal wireless property preemption

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The final version of the Federal Communications Commission’s ruling preempting local ownership of street lights, traffic signals and other publicly owned property in the public right of way has been posted. It gives cities and counties more time to comply with its diktats – that’s the major change I spotted last night as I was reading through it.

Originally, the ruling was set to take effect 30 days after it’s published in the Federal Register. That deadline was extended to 90 days, except for updated aesthetic requirements, which won’t come into play until 180 days after publication.

That’s assuming it has any effect at all. The U.S. Conference of Mayors promised to challenge it in court shortly after the FCC voted on Wednesday, mostly along party lines, to adopt the new rules. Other organisations representing cities and counties have likewise indicated that they’ll sue. Typically, that would also happen after it’s published in the Federal Register. It might be two or three months before publication, though. The Trump administration has to review it, primarily to make sure the red tape on it is properly tied.

The ruling shortens the time period – the “shot clock” – for local governments to make a decision on permit applications for “small wireless facilities” (which, by the FCC’s definition, aren’t necessary very small). For a new pole or tower, a city would have 90 days to reach a final decision. Colocation permits would have to be approved or denied within 60 days. The FCC wants to redefine “colocation” to include attachment to any existing structure, rather than to a structure that already has wireless equipment on it, as pretty much the rest of the world understands it. It might get away with it – federal courts have affirmed the FCC’s authority to set shot clocks.

But not to enforce them. That power still belongs to judges. So will the job of deciding whether lease rates for municipal property and permit fees are cost-based and reasonable – California law has something to say about that. Courts might or might not accept the FCC’s opinion – and that’s really all it most of the ruling is – regarding how Californian cities and counties should manage their affairs.

FCC preempts local property rights, gives street light poles to wireless companies

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Cities and counties shouldn’t take more than 60 days to process a permit to allow a wireless company to attach equipment to an existing structure, or more than 90 days if building a “small wireless facility” requires installation of a new pole or tower. That was the unanimous vote of the Federal Communications Commission yesterday. Democrat Jessica Rosenworcel joined her three republican colleagues and endorsed that particular section of an FCC ruling that also preempts local ownership of property that wireless companies might covet.

The rest of the decision, which gives wireless companies virtually unlimited access, at giveaway prices, to city and county-owned assets located in the public right of way, was approved on a party line vote. That permission specifically includes street light poles and traffic signals. Local aesthetic requirements are sharply restricted as well.

In her dissent, Rosenworcel called the decision overreaching and irresponsible

Three unelected officials on this dais are telling state and local leaders all across the country what they can and cannot do in their own backyards. This is extraordinary federal overreach.

I do not believe the law permits Washington to run roughshod over state and local authority like this and I worry the litigation that follows will only slow our 5G future. For starters, the Tenth Amendment reserves powers to the states that are not expressly granted to the federal government…

In addition, this decision irresponsibly interferes with existing agreements and ongoing deployment across the country. There are thousands of cities and towns with agreements for infrastructure deployment—including 5G wireless facilities—that were negotiated in good faith. So many of them could be torn apart by our actions here. If we want to encourage investment, upending commitments made in binding contracts is a curious way to go.

The final version of the ruling hasn’t been released yet, but there was no mention of any substantive changes from the draft published three weeks ago. It’s not a direct order to local governments – the FCC doesn’t have that authority, despite its rhetoric – but it does set out narrow guidelines that it expects federal courts to follow if mobile carriers start filing lawsuits challenging local lease contracts and permit requirements.

It’ll probably be three or four months before the FCC’s vote takes whatever effect it has. The Trump administration has to review it, which typically takes two or three months. Then it’s published in the Federal Register and comes into force a month after that.

That’s assuming it’s not blocked by a federal appeals court. A legal challenge was promised by the U.S. Conference of Mayors, which said the FCC’s action “misapplies federal law to federalise local public property as part of its efforts to bestow upon a class of private companies special rights to access local rights-of-ways and public property”.

The National Association of Counties and the National League of Cities also slammed the decision. Their joint statement said “the FCC is overlooking its overall goals to ‘build on the commonsense reforms adopted in state legislatures and town councils across the country”.