small cells

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

Eleven organisations and/or groups of organisations jumped in on the side of challengers to FCC decisions preempting local and state control of public right of way management and ownership of assets, such as streetlight poles, located there.

Five of the amicus curiae – friend of the court – briefs filed with the federal appeals court in San Francisco came from municipal electric utilities and associations representing them. The state of Oregon, an association representing Washington state cities and a group led by New York City offered supporting arguments, and the County of San Diego sent an endorsement letter.… More

Investor-owned electric utilities are challenging the one touch make ready (OTMR) rules issued by the Federal Communications last year. It’s part of a broader appeal of two decisions that the FCC made last year: the August 2018 wireline deployment decision and the September 2018 wireless deployment decision.

In those two decisions, the FCC issued an expansive set of preemptions that overruled local ownership of assets in the public right of way (such as streetlight poles), state and local timelines for wireless permit decisions, schedules for work in the public right of way, and generally took industry-friendly positions on issues that affect the ability of telecoms companies to install facilities – wireline or wireless – at will.… More

The opening arguments submitted by AT&T, Verizon, Sprint and the Puerto Rico Telephone Company in their appeal of last year’s Federal Communications Commission’s pole ownership preemption decision do little more than lend credence to the allegation that their challenges were launched in collusion with their friends at the FCC in a vain judge shopping attempt.

The 2018 FCC wireless order was a gigabuck early Christmas present to mobile carriers. It gave them the right to use city-owned property in the public right of way, such as street light poles, at below market rates, sharply restricted fees that local government could charge for permits to do so, and limited local discretion over street management and aesthetic standards.… More

The Federal Communications Commission’s preemptions of local property rights – particularly city-owned street light poles – and local rules regulating the use of public right of ways are contrary to federal law and violate the federal constitution, according to arguments submitted to a San Francisco appeals court by dozens of cities, counties and local government associations. In their opening brief submitted on Monday, they made their case for overturning last year’s FCC rulings that swept away state and local land use, road maintenance, property leasing practices and other policies that mobile carriers find bothersome.… More