Dozens of cities, counties and their associations yesterday asked a federal appeals court to reconsider a decision that blessed the Federal Communications Commission’s preemption of local ownership and control of streetlights and other assets installed in the public right of way.
In August, the cities’ challenge to the FCC’s ruling was mostly rejected by three judges from the San Francisco-based ninth circuit federal appeals court. The next step is to ask all 29 judges on that court to review the decision as a group – en banc, as the jargon goes.
The decision by the three judge panel didn’t directly address a central issue: whether the FCC can tell state and local governments what they can do with property they own as opposed to property, such as the public right of way itself, that they simply regulate and manage. The local governments’ petition argues that even if the FCC has the authority to preempt some local laws, that’s not the same as seizing municipal property and giving it to private companies…
Giving wireless providers a right of access to states’ and local governments’ property, and at cost, is not preemption. Preemption displaces local law; it does not give private commercial businesses an affirmative right to attach their equipment to a municipal streetlight for a cost-limited fee. Rather than preempting local laws, the FCC orders affirmatively require localities to establish or adapt a process, subject to strict time limits, for receiving and acting on applications for use of their property, and severely restrict localities’ ability to refuse access to their property…Local governments’ processes, and property, must be commandeered to carry out the federal program of promoting wireless facility deployment. That is not permitted under…anti- commandeering cases where the Court has rejected efforts to compel state or local officials to carry out federal policies…
En banc review is necessary to bring the FCC’s actions within constitutional limits.
The American Public Power Association, which represents municipal utilities, filed its own petition for an en banc hearing of the decision regarding ownership and control of publicly owned assets, as well as a request for a rehearing in a related case.
If the ninth circuit reconsiders the decision, it could be a year or more before the matter is settled. Or at least ready to be appealed once again, to the federal supreme court.