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

29 October 2018 by Steve Blum
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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

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