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

6 November 2018 by Steve Blum
, , , ,

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.