If cities and counties want to continue fighting the Federal Communications Commission’s preemption of local ownership of street light poles and other municipal property planted in the public right of way, they will have to take their case to the federal supreme court. In a ruling issued yesterday, the San Francisco-based ninth circuit court of appeals denied a request for a rehearing of a ruling made earlier this year by a three-judge panel that largely upheld the FCC’s authority to dictate the rates and terms for attaching wireless equipment to city-owned poles.
The court also rejected requests from the American Public Power Association (APPA) for a rehearing of the panel’s decision in so far as it affects publicly owned utility poles and reconsideration of similar decision in a related case.
The cities and counties, led by the City of Portland, Oregon, and APPA had asked for the decision by the three judges to be reviewed by all the ninth circuit’s 29 judges, aka an en banc rehearing. No luck…
The full court has been advised of the petitions for rehearing en banc and no judge has requested a vote on whether to rehear the matters en banc. The petition for panel rehearing by American Electric Power Service Corporation and Southern Company is DENIED. The petition for rehearing en banc by American Public Power Association is DENIED. The petition for rehearing en banc by City of Portland, et al. is DENIED.
I take the ninth circuit’s decision as good news. If the court had agreed to rehear the challenges to the FCC’s pole preemption, then the cases might have dragged on for a year or more. And regardless of the outcome, the federal supreme court would be the next step anyway. So assuming the cities and counties involved, and the municipal electric utilities represented by APPA, want to continue the fight, we’ll know sooner whether the FCC’s action will stand.