Overturning FCC local pole ownership preemption seems easier in San Francisco

27 December 2018 by Steve Blum
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The Federal Communications Commission “seeks to redefine the relationship between state and local governments and telecommunications providers” with a new and expansive interpretation of federal law, according to a group of local agencies challenging an order that preempts local ownership of light poles and other municipal property located in the public right of way. The group, led by the City of San Jose, wants the case moved from the federal appeals court in Denver, to the ninth circuit appeals court in San Francisco.

Firing back at mobile carriers and the FCC, who oppose the move, the San Jose group said that the big question in the case – regarding what “prohibit or effectively prohibit” broadband deployment means – is the same as in an appeal of an earlier FCC order that’s being heard in San Francisco. Federal law says state and local governments can’t block – effectively prohibit – wireless infrastructure deployment. The wrangling now is about defining when the prohibition threshold is crossed…

[The FCC] interpretation finds an effective prohibition where a requirement inhibits, inter alia, “improvements to service,” or imposes costs that may prevent a provider from investing in deployment in other areas…

[This] new interpretation put forth by the [FCC] Orders conflicts with Ninth Circuit…precedent holding that the plain language of [federal telecoms law] require an actual prohibition; speculative impacts or mere barriers are not enough.

On the other hand the Denver appeals court – the tenth federal circuit – set a lower bar. According to the FCC, the Denver court believes a local ordinance fails the test if it “materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment”. Clearly, the FCC and its telecoms industry friends would rather be held to the Denver court’s standard. Equally, San Jose and its allies have reason to prefer San Francisco.

It’s now up to the Denver court to decide where the challenge to the FCC order, which takes effect in less than three weeks, will be heard.

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.