Localities File Legal Challenges to FCC’s Small Cell Item

Legal challenges were filed today on behalf of more than two dozen Western localities and municipal groups to the small cell declaratory ruling and third report and order adopted last month over the partial dissent of Commissioner Jessica Rosenworcel (TR Daily, Sept. 26).

The item bars states and localities from adopting rules that prohibit the deployment of wireless infrastructure, imposes limits on the fees that municipalities can charge for reviewing small cell deployments, sets shot clocks for acting on small cell applications, and provides guidance on when non-fee requirements such as aesthetic and undergrounding requirements may amount to an effective prohibition on service.

The item drew praise from the wireless industry, which says it will help the U.S. lead the world in 5G deployment, but widespread criticism from groups representing states and localities and numerous localities themselves.

“The Ruling exceeds the FCC’s statutory authority; is arbitrary and capricious and an abuse of discretion; and is otherwise contrary to law, including the Constitution of the United States,” said a petition for review (“City of San Jose, et al. v. USA, et al.”; no 18-72883) filed today in the U.S. Court of Appeals for the Ninth Circuit (San Francisco) on behalf of 20 localities in California, Washington, Nevada, Arizona, and Oregon. “The Petitioners respectfully request that this Court hold unlawful, vacate, enjoin, and set aside the Declaratory Ruling; and grant such other relief as it may deem appropriate.”

The localities include small and large cities, towns, and counties, including the city of Los Angeles, Los Angeles County, San Jose, Las Vegas, and Portland, Ore.

The petitioners’ brief is due Jan. 14, 2019; the respondents’ brief is due Feb. 11, 2019; and the petitioners’ optional reply brief “is due 21 days after service of the answering brief.”

Another petition for review, which did not have a case number today, was filed with the Ninth Circuit today on behalf of the cities of Seattle and Tacoma, Wash.; King County, Wash.; the League of Oregon Cities; the League of California Cities; and the League of Arizona Cities and Towns.

“The Order purports to further the Commission’s goal of accelerating the deployment of 5G small cell technology by limiting or eliminating Petitioners’ traditional local regulatory authority over zoning and right-of-way management and Petitioners’ proprietary rights over whether and on what terms State and local governments may allow communications providers rights to access, occupy and use Petitioners’ real and personal property. However, the Commission’s rules are an unlawful pre-emption of local and state government authority promulgated without response to the arguments advanced by Petitioners in the record,” according to the petition for review.

“Petitioners seek review of the Order on the grounds that the Order is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; violates federal law, including, but not limited to, the Constitution of the United States, the Communications Act of 1934, as amended, and the Commission’s regulations promulgated thereunder; and is otherwise contrary to law,” the filing added. “Petitioners respectfully request that this Court hold unlawful, vacate, enjoin, and set aside the Order; and grant such other relief as the Court may find proper.”- Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily