Wireless permit shot clocks aren’t really shot clocks, fee limits aren’t really limits, FCC tells appeals court

by Steve Blum • , , , ,

Riverside pole mount

The FCC wants to stall a federal appellate court review of its order preempting local ownership of street light poles and similar municipal assets located in the public right of way. Dozens of cities, counties and associations pushed back against the move, telling the court they would face “significant hardships” if their appeal was iced for months while the FCC pretends to reconsider its original ruling at its leisure.

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.

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