“Significant hardships” will fall on cities if appeals of FCC pole ownership preemption stall, court told

8 March 2019 by Steve Blum
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The cities and counties that are challenging the Federal Communication Commission’s preemption of local ownership of streetlight poles and other assets located in the public right of way don’t want any delays in their cases. In filings yesterday with the ninth circuit federal appeals court in San Francisco, local agencies objected to the FCC’s request to put everything on hold while it thinks about whether it’s going to reconsider its decision. Which could take months, or longer.

The primary objections came from a large group of agencies led by the City of San Jose. Pointing out that the FCC’s “September order” is already in effect and commissioners are bragging about, the group said it’s now in the court’s hands

There is no evidence suggesting the September Order is anything other than the final result of its decision-making process. The FCC continues to publicly stand by the September Order as adopted. Commissioner Brendan Carr, who has been leading the FCC’s infrastructure efforts, recently highlighted the September Order in a February 5, 2019 speech, asserting that the agency was “not going to slow down” in its infrastructure efforts, and that the September Order (which had at the time been effective for only 22 days, and then only in part) was already impacting local government practices and wireless deployment. There is no reason, therefore, to suppose that further delay will somehow actually resolve the issues raised in these appeals, or that the September Order on appeal here is anything other than the “final administrative work.”

Flanking objections were entered by the City of Huntington Beach and a smaller group led by the City and County of San Francisco. Accusing the FCC of being “at worst disingenuous”, San Francisco said that the September order imposes “real, concrete hardships” on local governments…

Some Municipal Parties, consistent with state law and with prior court precedent, charge rent-based fees for commercial use of municipal property. San Francisco, for example, has licensed access to hundreds of its streetlight poles and transit poles for small cell facilities at an agreed-upon rate in excess of $4,000 per year. Demand for access to those poles has continued unabated since the FCC issued the Order. Further, many of those licenses have reached the end of their first year and must be renewed for the agreed-upon license fee. Again, while the Order is in effect, a local government must either comply (e.g., charge only cost-based fees at or below the Order’s presumptive thresholds) or risk litigation over its actions on every wireless siting application it receives, or at renewal of any existing license agreement.

The FCC order took direct aim at agencies like San Francisco that charge what it, and its mobile carrier friends, consider to be exorbitant. As far as the FCC is concerned, $270 per year is sufficient.

For now, the ninth circuit hasn’t ruled on the FCC’s request and the cases are still moving forward.

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.