FCC and friends want to keep muni pole ownership preemption challenges in Denver

19 December 2018 by Steve Blum
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Neither the Federal Communications Commission or mobile telecoms companies want to go to San Francisco to defend the agency’s preemption of local ownership of municipal property in the public right of way. They want to keep the growing list of appeals court challenges to the FCC’s September wireless deployment order in Denver.

In separate, but very similar, rebuttals the FCC and the beneficiaries of its generosity argued that the cases shouldn’t be transferred to the ninth circuit federal appeals court in San Francisco, as requested by the City of San Jose and its partners. San Jose based its claim on the notion that its appeal and the City of Portland’s appeal of an earlier but related FCC ruling (dealing with wireline broadband deployments) were really the same things.

In its filing yesterday, the FCC said that the wireline order and the wireless order

…do not constitute “the same order” because they each address separate and discrete subjects. The [wireline order] addresses federal pole attachment rules…and state and local moratoria on new wireline and wireless infrastructure through explicit or de facto refusals to allow deployment. The [wireless order], by contrast, does not relate to either state or local moratoria or pole attachment rules, nor does it apply to wireline facilities. Rather, it addresses three discrete subjects in the specific context of small wireless facilities: fees and charges assessed by state and local governments, aesthetic requirements and similar issues, and timelines for state and local authorizations.

It’s now up to the federal appeals court judges in Denver to decide who has it right.

The list of known challengers to the FCC’s preemption order is also getting longer. The City of Eugene, Oregon (along with two other cities), the City and County of San Francisco, the City of North Little Rock, Arkansas (jointly with a muni utility association), and Montgomery County, Maryland filed their appeals in various federal courts around the U.S. The FCC filing says all are supposed to be consolidated into the Denver proceeding, as will the other cases pending in Washington, D.C.

North Little Rock also took the honor of being the first to formally ask a federal appeals court to issue a stay and put the FCC’s ruling on hold.

Responses to San Jose’s request to move the cases to San Francisco
Mobile companies and lobbyists

New petitions appealing the FCC’s September wireless decision
Eugene, et al
San Francisco
North Little Rock, et al
Montgomery County

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