The National League of Cities, the U.S. Conference of Mayors, the National Association of Counties, the National Association of Telecommunications Officers and Advisors, and the National Association of Regional Councils, the National Association of Towns and Townships, and more than 60 state and regional level municipal associations and individual cities, towns, and counties have asked the FCC to stay the third report and order the FCC adopted in August in its proceeding on removing barriers to broadband infrastructure investment, which, they noted, is due to take effect Jan. 14, 2019.

The local government interests object to the order’s restrictions on what they can charge for use of their right-of-way, its adoption of a federal standard regarding the aesthetics of wireless infrastructure, and its redefinition of what constitutes an “effective prohibition” of deployment, which the Communications Act authorizes the FCC to preempt.

With regard to the interpretation of the phrase “effective prohibition” as used in sections 253 and 332 of the Communications Act, the order adopted in August in WT docket 17-79 and WC docket 17-84 “explicitly rejects the ‘significant gap’ and ‘least intrusive alternative’ tests that had been adopted and applied (with small variations) by almost every U.S. Circuit Court of Appeals, and incorporated into local ordinances over the last 20 years. The Order, in contravention of a key holding in [the Supreme Court’s 2005 decision in] ‘National Cable & Telecommunications Ass’n v. Brand X Internet Services,’ also rejects the ‘plain language’ interpretations of those sections adopted by the Eighth and Ninth Circuits, both of which found that an effective prohibition requires the litigant to prove that a challenged action actually prohibits provision of a protected service. The Commission instead adopted a standard that presumes a prohibition where costs of deployment are increased (on the theory that providers might offer additional services if they were richer); and that concludes that service is ‘prohibited’ if an entity is prevented from ‘improving’ service,” the local government parties said.

They added that the order “[a]dopts a federal wireless aesthetic standard notwithstanding the fact that Section 332(c)(7) does not authorize the Commission to set aesthetic standards. The new Commission standard preempts local authority even where there is no personal wireless service prohibition, if the standards are not ‘published’ or are ‘more burdensome’ than standards applied to other ‘infrastructure deployment.’”

Finally, they object to the FCC’s decision to limit “the amounts that localities can charge for use of rights of way, and for use of other property that happens to be located in the right of way — even though much of that property (street lights and traffic signals) is not generally open to use by third parties, and other publicly-owned property (utility poles) is specifically exempted from Commission price and term regulation by 47 U.S.C. § 224. The Order goes on to require localities to respond to a request for access to that property within 60 days; makes failure to respond a presumed prohibition; and suggests that the locality may be sued, and the court then prescribe the terms for access. In effect, the Commission is misreading what courts have properly recognized are merely preemptive provisions to instead command access to property that currently, if made available at all, is made available on a contract by contract basis, or in accordance with requirements of state law.”

They said that the order would require “a massive rewrite of laws and contracts across the country. The Commission recognizes that complying with just one element of the Order — development of aesthetic requirements – could require at least 180 days. Nonetheless, the Order will go into effect within 90 days, and the first lawsuits challenging the new local requirements can be filed 60 days after that. Meaning: there is no way to implement this Order, even if one assumed that it raised no significant legal issues.”

They added that the order would not even further its own goal, because, “to the extent the Order creates litigation, or uncertainty, it will ultimately complicate, and not speed deployment.  Carriers — several of which are also challenging the Order — have already announced that the adoption of the Order is not changing their investment plans, so a stay will not harm deployment.” —Lynn Stanton, lynn.stanton@wolterskluwer.com

Courtesy TRDaily