SCOTUS Won't Hear 5G Small-Cells Case
The Supreme Court refused to hear a local government challenge to the FCC’s 2018 small-cells orders. The court denied certiorari to Portland, Oregon, and other localities in case 20-1354 without explanation, in its Monday order list. Local government attorneys told us they will keep talking about wireless infrastructure concerns at the FCC. Industry applauded SCOTUS not taking the case. Cities argued the case was ripe for SCOTUS review despite the FCC and DOJ saying there wasn’t any reason to take the case (see 2106150079) and 2106030066).
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"Streamlining deployment processes can help us build the next generation of wireless service in this country," an FCC spokesperson emailed. "We will be even more successful if we can make states and cities our partners in that effort. The FCC is moving ahead on a range of polices to reach 5G service that is fast, secure, resilient, and available nationwide."
Local governments will “continue to work with the FCC on the issues raised in the petition, and we expect that we will be seeing some as-applied challenges to the FCC rule,” emailed Joseph Van Eaton, who represented Portland and several other localities. The denial is disappointing, but it helped that the FCC and solicitor general’s written opposition to cert “emphasized that the FCC’s ‘effective prohibition’ standard is not meant to allow wireless providers to build what they want, wherever they want it,” Van Eaton said. Denial of cert is never surprising, said Spiegel McDiarmid’s Tim Lay, who represented localities including San Francisco.
The Wireless Infrastructure Association “is pleased" the court declined to hear "an appeal of important FCC reforms that have been critical to accelerating 5G deployment ... [and] even more necessary in preparation for the historic Biden Administration plans to invest in broadband infrastructure,” said WIA President Jonathan Adelstein. The decision “upholds the FCC’s important modernization of its guidelines for wireless broadband infrastructure deployment and is consistent with the actions of policymakers across the country who have adopted similar reforms,” a CTIA spokesperson said. Competitive Carriers Association CEO Steve Berry said the decision “will clarify the legal situation and help promote 5G deployment around the country.”
“While we continue to believe the FCC got it wrong in its 2018 small cell orders and would have liked the Supreme Court to review them, our collective focus needs to be on ensuring every household and business has access to affordable, reliable and truly high speed broadband services,” emailed NATOA General Counsel Nancy Werner. “In the nearly three years since the FCC issued these orders, that need has only grown more urgent and unfortunately these orders have not moved the needle. NATOA and its members will continue to use the tools we have to push for real, community-focused solutions to the digital divide.”
“We’re disappointed” but “recognize that any request for certiorari review is a long shot,” said local government attorney Ken Fellman. At least a lower court overturned aesthetic requirements, and localities “have gone to great lengths to change their codes” and “practices to implement and be able to be compliant with the other parts,” he said. Noting FCC acting Chairwoman Jessica Rosenworcel dissented from the contested order while in the minority, Fellman predicted localities will now work with current leadership “to see what we can do to try to mitigate some of the troublesome impacts of the current rules.”