Federal appeals court judges hearing the challenge brought by local governments to the Federal Communications Commission’s 2018 preemption of ownership and control of street lights tried to get an FCC lawyer to explain how the commission settled on $270 as the allowable annual pole rental limit. The attorney, Scott Noveck, couldn’t oblige judges Jay Bybee and Mary Schroeder…
Bybee: I’d still like you to get to how you get to the $270.
Novek: So your honor, what I believe happened is that the commission took a look at various state small cell bills…
Bybee: It’s interesting, counsel, that you just characterised it as ‘you believe’. Because there isn’t anything in the record that tells us what the commission did, other than look at bills that were pending in a number of states, mostly in the heartland, not on the coast.
Novek: I want to try to answer that, but I just want to say to preface that, that this is just a safe harbor. And this order would have been perfectly reasonable even without any safe harbor at all.
Schroeder: When you say safe harbor, what do you mean? Do you mean that if it’s below that there’s no problem with it?
Novek: So, what I think what the commission was doing here was recognising that there exists a certain level of fees below which the fees are so likely to pass muster, they’re so likely to be within what the actual costs are, that it wouldn’t make sense to be expending resources on litigating those…But nothing at all precludes localities from charging higher fees where their costs are higher.
Bybee: Does the commission have an obligation to explain why it chose $270 as opposed to, let’s say, $250 or $300?
Novek: Well, I do think that at that point you’re in the area of paradigmatic line drawing, where agencies, I think, are at their greatest deference.
Bybee: They could have chosen $200 or $400 – that’s significant, isn’t it?
Novek: Your honor, I don’t think that this was, um, something that we were able to calculate with mathematical precision…
Bybee: You can calculate it with mathematical approximation. I don’t even see the approximation.
Novek: So, what the commission did here…
Bybee: The numbers that are in the bills that the commission relied on…are in the range of about $100. So the $270 appears – I mean, it may be generous for the cities, and maybe it was out of an abundance of caution. I’m just trying to figure out whether they just drew a number out of a hat, which might make it arbitrary and capricious.
The $270 figure originally came from lobbyists for mobile carriers, such as AT&T, Verizon, T-Mobile and Sprint. In 2017, they convinced California lawmakers – whom they and their colleagues influence with millions of dollars in payments – to enact a similar limit, which was vetoed by governor Jerry Brown.
The challenge to the FCC’s 2018 preemption is now in the hands of the three judges from the federal ninth appellate circuit, who heard the case last week in Pasadena. Their decision is likely to come sometime in the next three to six months.