Localities Ask SCOTUS to Stop Small-Cells Preemption
Portland, Oregon, and 35 other municipalities and associations asked the Supreme Court to hear the appeal of the 9th U.S. Circuit Court of Appeals' decision upholding much of the FCC's 2018 small-cell orders. Monday's appeal by localities was expected (see 2103220059). Lack of a circuit split could work against the court taking Portland v. FCC, but local governments have hope because it raises important federal questions, State and Local Legal Center Executive Director Lisa Soronen told us Tuesday.
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The 9th Circuit "blesses an FCC ruling that does not respect the authority of state and local governments that Congress preserved in Sections 253 and 332(c)(7)” of the Communications Act, said petitioners including Atlanta, Boston, Chicago, Dallas, Washington, D.C., Los Angeles, Philadelphia, San Francisco and the National League of Cities. “It upheld FCC rulings that are in tension with multiple circuit court decisions, those of this Court, and important principles of federalism.” The agency declined to comment.
With “hundreds of thousands" of small cells forecast to be deployed over a few years, "consequences of leaving these conflicts unresolved are immense,” local governments argued. “Delayed action will leave in doubt the proper standards to govern these deployments and will impact untold amounts of public and private spending.” The case offers a "proper vehicle for the Court to provide guidance to constrain the FCC and other agencies from aggrandizing their authority beyond that permitted under the plain language of their governing statutes and basic principles of federalism,” they said.
Granting cert would be a surprise, said Brent Skorup of George Mason University’s Mercatus Center. “This legal fight over the FCC’s small-cell policies hasn’t created a circuit split or presented a pressing constitutional question,” he said: “The lower court rejected the constitutional claims, and courts give agencies generous deference when it comes to interpreting statutes. The cities’ chance of success in getting a rehearing is slim.”
“The 9th Circuit issued a strong, well-supported decision," emailed a Wireless Infrastructure Association spokesperson. "WIA would have an extremely strong basis for defending these important reforms if the Court were to grant cert.” CTIA didn't comment.
"Local governments have a good case," said local government attorney Ken Fellman, but "it is always an uphill battle to have cert granted." One wants "a circuit split,” but it’s not a “hard-and-fast rule” to get SCOTUS to grant cert, Soronen said. “The court takes up cases every term that don’t have circuit splits when there are important questions of federal law.” This issue may not come up in other circuits, since petitions across several venues were consolidated at the 9th Circuit, she noted.
Respondents usually have 30 days to support or oppose, “but often extensions are requested and granted,” said Best Best’s Cheryl Leanza, representing the plaintiffs. Extensions happen “fairly often,” agreed Spiegel McDiarmid’s Tim Lay, another attorney for the challengers. Without one, the court could take up the petition in late May or early June, but “if there is an extension, it could slip to next fall,” he said. Lay said he wasn't aware of others petitioning the court.
The 9th Circuit construing the phrase "effect of prohibiting" in Sections 253(a) and 332(c)(7)(B) to preempt any state or local requirement stopping telecom providers from offering any service it wishes using any capability or performance goal it wants is “inconsistent with multiple circuit courts, incorrectly construed the statute to have no 'limiting standard,'" petitioners said: It misapplies 2005's Brand X. By banning cities from charging above-cost rental rates in the right of way, the FCC "emptied of meaning Section 253(c)’s safe harbor for ‘fair and reasonable compensation,’ in conflict with the uniform view of other circuits; and it denied localities’ proprietary interests in rights-of-way and municipal property thereon, in conflict with this and other courts’ precedent." Petitioners cited 9th Circuit Judge Daniel Bress’ partial dissent on the fees issue (see 2008120048).
The high court should grant cert “to ensure the phrase 'effect of prohibiting' is consistent across the nation and subject to a meaningful, limiting standard,” said petitioners. They cited 1999's AT&T v. Iowa Utilities Board, where the court “reversed the FCC's decision to adopt a one-sided interpretation which took, as its sole deciding factor, the new entrant's business plans.” That court said the FCC must apply “some limiting standard,” localities said. "Whether the statute can be construed to compel private commercial access to municipal property at cost is an important question meriting review." The Supreme Court “should resolve the circuit conflict over the meaning of ‘fair and reasonable compensation’ under Section 253(c),” they said.