FCC’s pole preemption commandeers City of Whoville, court told

1 July 2019 by Steve Blum
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Eleven organisations and/or groups of organisations jumped in on the side of challengers to FCC decisions preempting local and state control of public right of way management and ownership of assets, such as streetlight poles, located there.

Five of the amicus curiae – friend of the court – briefs filed with the federal appeals court in San Francisco came from municipal electric utilities and associations representing them. The state of Oregon, an association representing Washington state cities and a group led by New York City offered supporting arguments, and the County of San Diego sent an endorsement letter. The Communications Workers of America and a couple of advocacy organisation filed a brief, as did a tin foil hat group. Links to all are below.

The main arguments they made against the FCC’s pole and right of way preemptions are…

  • State and local governments operate under a complex web of laws that the FCC has no authority to simply override by decree.
  • Federal regulations and state laws require governments to “obtain fair market value” when leasing out public property.
  • Congress specifically barred the FCC from regulating municipal and other publicly owned electric utilities.

Not surprisingly, no one offered support for the bogus challenge ginned up by mobile carriers in a judge shopping effort.

The cutest argument came from the Washington state cities. They accused “Daddy Warbucks’ small wireless company, Warbucks Wireless” of “commandeering the City of Whoville”. Both the Grinch and the FCC have until August to file rebuttals.

American Municipal Power, Inc.
Northwest Public Power Association
Nebraska Municipal Power Pool and Lincoln Electric System
Iowa Association of Municipal Utilities, Minnesota Municipal Utilities Association, Missouri Association of Municipal Utilities and Arkansas Municipal Power Association
Missouri Basin Municipal Power Agency
County of San Diego
Association of Washington Cities
State of Oregon
New York City, NATOA, The International Municipal Lawyers Association (IMLA) and International City/County Management Association (ICMA)
Communications Workers of America, National Digital Inclusion Alliance, and Public Knowledge
Berkshire-Litchfield Environmental Council