The rounds of written arguments and counter arguments in the appeals of last year’s FCC decisions preempting state and local governments’ control of public right of ways and ownership of property, such as street light poles and traffic signals, they install there is drawing to a close. Several groups filed rebuttals to the FCC’s defence of its preemption. The primary opposition came from a reply brief filed by a long list of cities and counties in the federal appeals court based in San Francisco, which is hearing the combined challenges to two sweeping rulings made by the FCC last year.
The local governments shot down the FCC’s claim that mobile carriers will build more infrastructure if pole rental fees are lower isn’t based on independent evidence or company track records…
The Commission tries to fill the gap with industry’s self-interested assertions that they will increase small cell investment in response to lower fees. But the record shows that providers have not increased deployment when offered lower fees. The Commission relies on AT&T’s assertion that it has not deployed any small cells in Portland, Oregon, due to the current fee levels. Yet when Portland conducted a pilot project, lasting more than three years, that set lower annual rights-of-way fees, AT&T did not submit a single small cell application.
And, they said, the FCC falsely accuses cities of monopolising access to streets, while ignoring the real monopolists…
The Commission’s claim that local fees reflect “monopoly pricing” ignores record evidence that, unlike the case with wireline facilities, private property alternatives to rights-of-way and rights-of-way infrastructure exist for locating wireless facilities. It also overlooks this Court’s recognition in Charter Communications, Inc. v. County of Santa Cruz that unlike private businesses, local governments are accountable to voters with interests beyond profit maximization.
The FCC’s preemption of ownership of municipal property placed in the public right of way, such as street light poles and traffic signals, isn’t based on powers granted by congress, the local governments’ brief further argues…
The Communications Act of 1934’s only affirmative grant of authority with respect to regulation of access to utility poles and similar structures…does not reach municipal property…There is no response to our argument that the Act gives the Commission no general roving authority to regulate private or public property merely because it is convenient or even necessary for use in telecommunications.
The American Public Power Association, which represents municipal electric utilities, also made the argument that federal law specifically bars the FCC from regulating poles owned by government agencies.
Four mobile carriers – AT&T, Verizon, Sprint and the Puerto Rico Telephone Company – filed a desultory brief in support of the judge shopping lawsuits they filed in four different appellate districts. I can imagine the conversation: I know we gotta make it look good, but keep the billable hours to a minimum please. And Montgomery County, Maryland’s quest to make tin foil hats great again continued.
Links to petitions, court documents and background material are here.