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The rounds of written arguments and counter arguments in the appeals of last year’s FCC decisions preempting state and local governments’ control of public right of ways and ownership of property, such as street light poles and traffic signals, they install there is drawing to a close. Several groups filed rebuttals to the FCC’s defence of its preemption. The primary opposition came from a reply brief filed by a long list of cities and counties in the federal appeals court based in San Francisco, which is hearing the combined challenges to two sweeping rulings made by the FCC last year.… More

The FCC’s subservience to the telecommunications companies it’s supposed to regulating – or at least the grovelling of its republican majority – is highlighted by the industry’s defence of sweeping preemptions issued by the commission last year. In a brief filed with the San Francisco-based ninth circuit federal appeals court, carriers and their lobbyists effectively admit they were gaming the judicial system when they tried to steer the case to a friendlier court, with the collusion of the FCC.… More

Verizon is using a legally shaky ruling by the Federal Communications Commission to shake down the City of Rochester, New York. Last year, the FCC ruled that publicly owned property, such as light poles or traffic signals, located in the public right of way were, in fact, part of the public right of way and not municipal property.

Rochester wants to charge Verizon up to $1,500 a year in rental fees for the use of city-owned poles in the public right of way.… More

Even if a federal appeals court buys arguments made by the Federal Communications Commission and its good friends in the mobile telecoms industry, and allows last year’s preemption of local ownership of light poles and other municipal property in the public right of way to stand, it might not matter in California, or any other state “which regulates the rates, terms, and conditions for pole attachments”.

As it tries to defend its wide-ranging preemption against challenges being heard by a federal appeals court in San Francisco, the FCC filed another set of arguments last week saying its authority, at least as far as utility poles are concerned, comes from a particular section of the communications act of 1996.… More

Two mobile carriers – Verizon and Sprint – and a group of industry lobbyists filed arguments in support of the Federal Communications Commission’s sweeping preemption of state and local ownership of public property with the federal appeals court based in San Francisco. That’s where the long list of challenges to the FCC’s 2018 wireless and wireline decisions are being heard.

The mobile industry’s arguments focus on whether the FCC has the authority to tell states and local governments how to manage and allow access to the public right of way.… More

Tactical retreat well describes much of the Federal Communication Commission’s defence of its heretofor sweeping rewrite of rules regarding local government pole rentals and permits for small(ish) cell sites. It goes to great lengths to explain that its bargain basement “safe harbor” price for permits and rental rates “is not a ceiling”.

It also backs down from what appeared to be a total preemption of publicly owned property located in the public right of way, limiting it to cases where “the property in question is controlled by the same government entity that controls the rights-of-way” and there’s a “‘temptation’ for governments to seek to ‘insulate conduct from federal preemption’ by ‘blending’ their regulatory and proprietary roles”.… More

The Federal Communications Commission’s March 2018 decision to scrap federal environmental and historical reviews for small cell sites was “arbitrary and capricious” according to the federal appeals court based in the District of Columbia, aka the D.C. circuit. In an opinion issued this morning, the D.C. circuit judges said “the commission failed to justify its confidence that small cell deployments pose little to no cognizable religious, cultural, or environmental risk”.

Today’s decision does not directly affect appeals of the FCC’s September 2018 wireless or August 2018 wireline rulings – those are being fought out in the ninth circuit federal appeals court in San Francisco.… More

Update, 9 August 2019.

In its brief, the FCC backed down from what appeared to be a blanket assertion that all publicly owned property within the public right of way is the same thing as the public right of way. This preemption of local property rights only applies “when the property in question is controlled by the same government entity that controls the rights-of-way”, the brief said.

By that reasoning, if a city owns a light pole along a road controlled by a state agency such as Caltrans, it can charge a mobile carrier as much as it wants to use it.… More