FCC tries to stall court challenges to its local pole ownership preemption order

28 February 2019 by Steve Blum
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Wjl thruway

The Federal Communications Commission asked the federal appeals court in San Francisco to put cases filed against it by local governments on hold.

Dozens of cities, counties and associations sued the FCC, challenging its preemption of local ownership of street light poles and other assets in the public right of way. Several have also asked the FCC to reconsider its September decision, which is a routine administrative request that is routinely denied. But the FCC hasn’t done anything with it yet, and is using its own inaction as an excuse to stall the court case.

The FCC told the ninth circuit federal appeals court in San Francisco that waiting until it’s figured out what to do will make the judges job simpler or more complicated or something…

The FCC’s proceedings on reconsideration may simplify judicial review—either by resolving issues that the Court would otherwise need to address, or by providing additional analysis on issues that ultimately remain in dispute. Equally important, because the agency’s disposition of a petition for reconsideration may give parties a new opportunity to challenge the Order, either in this Court or in another court of appeals where venue lies, allowing the agency to address the petition for reconsideration before these cases proceed would mitigate the possibility of piecemeal (and possibly inconsistent) judicial review.

There’s no indication of how long the FCC wants keep the case on ice. It only promised to check in with the court every couple of months. According to the FCC, local agencies don’t want the case stalled, while the mobile companies who are accused of colluding with the FCC to game the system are happy to let it gather dust for as long as it takes. Forever would probably suit them.

The FCC also asked the ninth circuit to bundle all of the dozen or so separate challenges into a single case. That seems to be less controversial – it’s standard operating procedure in these circumstances – but it’s possible objections could be raised.

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

My clients are mostly California cities, including some that are directly involved in this case. I’m not a disinterested commentator. Take it for what it’s worth.