Not much room for mediation in appeals of FCC local pole preemption order

23 January 2019 by Steve Blum
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Burlingame poles

The challenge to the Federal Communications Commission’s September Order preempting local ownership and control of municipal property grinds on. The local governments and companies appealing the order, which strips cities and counties of ownership rights to streetlight poles and other such assets in the public right of way, filed brief statements –mediation questionnaires – with the San Francisco-based federal appeals court hearing the case yesterday.

Mobile companies are appealing the order because, they say, the FCC didn’t go far enough and give them everything they wanted. It would be overly optimistic to say the likelihood of the courts agreeing with them is slim. But by filing their appeals, they get a seat at the table so they can, presumably, disrupt the cases brought by local governments.

In its questionnaire, Verizon repeated its amazing argument that the FCC isn’t allowed to not automatically allow it to attach wireless equipment to city poles if the review process takes too long – in other words, if the “shot clocks” expire…

In the underlying Order, the FCC considered state and local regulatory barriers to the wireless infrastructure siting review process, particularly the siting of next-generation infrastructure. The FCC’s refusal to implement the “deemed granted” remedy is arbitrary and capricious in violation of the Administrative Procedure Act, and is an abuse of the Commission’s discretion. It also violates other federal laws, including, but not limited to, the Communications Act of 1934.

Huntington Beach, on the other hand, restated the basic argument it and other local governments have made – that the FCC doesn’t have the authority to confiscate local property…

The Order significantly limits the rights of state and local governmental entities such as Petitioner, City of Huntington Beach, to regulate, and lease its own property for the installation of Small Wireless Facilities (“SWF”) in the public rights-of-way (“ROW”) and on city-owned streetlights, and traffic signals. SWFs will be installed primarily for the deployment of 5G Wireless Networks. The Order is an unlawful pre-emption of local and state government authority.

In the “other thoughts” box on the form, the City of Seattle added that this isn’t the kind of question that’s suitable for mediation…

Every major wireless service and infrastructure provider, hundreds of communities, and many individuals and associations participated in the Commission proceedings which resulted in the Declaratory Ruling and Third Report and Order that is the subject of this appealed. We do not believe it possible that this matter can be resolved through mediation owing to the nature and scope of the issues at hand and the numerous participants.

Mediation, or at least considering it, is a standard step in a federal appeals case. Given the scope of the issues involved and the necessary process at the Federal Communications Commission, it’s a pretty safe assumption that the case will be argued, and not mediated away.

Mediation questionnaires:

City and County of San Francisco
City of Huntington Beach
City of Seattle, et al
Montgomery County

Puerto Rico Telephone Company

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.