The Federal Communications Commission says it has the authority to tell cities and counties what they can do with property they own, because otherwise they would be breaking the law. In a decision that should have surprised no one, the FCC refused to put its September wireless preemption ruling on hold.
Instead, in an odd bit of contradictory reasoning, the FCC’s latest order says it’s not taking away cities’ rights to property they own that’s located within the public right of way (ROW), such as street light poles and traffic signals. All the FCC is doing, the order says, is preventing local governments from breaking the law…
The Order does not implicate local governments’ actions in their role as property-owners; rather, it focuses on preventing them from violating federal law when they engage in “managing or controlling access to property within public ROW” for wireless facility deployment.
Except the illegal activities that cities are supposedly engaging in are completely legal. Or at least were until the FCC reversed earlier decisions and said that congress gave it the authority to tell local governments what they can do with property they own, simply because it’s in the ROW and mobile companies think it’s highly valuable.
The order was in response to a request from the National League of Cities and several local governments to delay enforcing the local property preemption until federal courts decide whether it’s cities or the FCC that’s breaking the law. It was a futile, but necessary move. Usually, federal judges won’t consider a request to delay a federal agency’s action until the agency refuses to do so itself.
The next move will be made in Denver, assuming that the federal appeals court headquartered there – the tenth circuit – doesn’t kick the case to San Francisco, as requested by the City of San Jose. San Jose and a couple dozen other local agencies will ask the court to ice the FCC decision until the larger legal challenge is decided. They have a fighting chance of winning the next round, not least because federal judges will want the FCC to give a better explanation than we’re right because we say we’re right.