Ninth Circuit Hears from Local Governments on FCC Small Cell Preemption

No comments

Local governments continue to combat federal telecommunications preemption on behalf of their communities and residents.

A panel of judges in the Ninth Circuit Court heard oral argument for a legal challenge mounted by local governments to 2018 orders by the Federal Communications Commission (FCC) limiting local authority over wireless equipment in public rights-of-way. The hearing for the consolidated case, City of Eugene, Oregon v. FCC, was the latest step in a process by a coalition of dozens of local governments, including the National League of Cities, to overturn the 2018 FCC preemption. The Communications Workers of America, National Digital Inclusion Alliance, and Public Knowledge filed an amicus brief in support of the local government.

The local coalition argued to a panel of judges that the FCC lacked the authority necessary to preempt local authority in the 2018 orders, which prohibited local moratoria of wireless siting approvals, limited aesthetic review of small cell wireless sites, shortened the shot clock allowed for review of those sites, and dramatically limited acceptable application fees and annual rights-of-way use fees to $100 and $270 per site, respectively.

The three-judge panel peppered counsel for localities, members of the wireless industry, and the FCC with questions on the siting process and the agency’s rationale for the order. Of particular interest to the judges were the order’s limit on fees assessed by local governments. The panel asked Joe Van Eaton, representing local government, a number of questions about the impact of the fee limitation. Van Eaton noted that the order contains no meaningful incentive or requirement for wireless companies to invest the funds saved on the cost of fees in lucrative, expensive areas into the infrastructure of less-profitable underserved areas, contrary to the agency’s justification for the order.

“[Wireless companies] don’t take good money and pour it into an area where it’s not profitable out of the goodness of their heart.”

The panel also pressed the FCC for a justification for its fee levels. “How did you get to $270?” asked one of the judges. He noted that the order cited a number of pending state bills in its justification in setting $270 as an approximation of a locality’s direct and actual costs for managing a small cell site. “I don’t see much data there,” he concluded.

“At the end of the day, we all want our communities to benefit from new technology like 5G, but the FCC is preventing cities from making the kinds of community-focused decisions that prevent digital redlining and preserve streetscapes,” said NLC CEO and Executive Director Clarence Anthony. “By preventing cities from charging an appropriate fee for the use of public property by big corporations, the FCC is forcing cities to subsidize private development, without any guarantee of a benefit to their residents. In the face of overreach and misinterpretation of federal statute by the FCC, and the threat of congressional stalemate, NLC made the decision to join dozens of our member cities, towns and villages and ask the courts to provide a remedy.”

The court is expected to issue a ruling later this year. In the meantime, Senator Dianne Feinstein, Representative Anna Eshoo, and a number of their colleagues in the Senate and House are advancing legislation to nullify the FCC’s small cell preemption. Support these efforts by calling on your members of Congress to cosponsor the Restoring Local Control Over Public Infrastructure Act of 2019 (S. 2012) and the Accelerating Broadband Development by Empowering Local Communities Act of 2019 (H.R. 530). For a sample letter you can personalize and send to your congressional delegation, visit nlc.org/TakeAction.

AP

About the Author: Angelina Panettieri is the Legislative Manager for Information Technology and Communications at the National League of Cities. Follow her on twitter at @AngelinainDC.