Cities Rebut FCC, CTIA Opposition to Freezing Small-Cells Order

cities disagreed they didn’t meet legal burdens of showing irreparable harm or a likelihood of success (see 1901020039). “Although Respondents argue that little significant will occur, that contention is belied by their argument that the Order provides ‘immediate regulatory relief,’" the cities said. Harms to local governments are real and imminent, the cities said. Shot clocks require local governments to respond within 60 days to requests for access to government-owned property, then allow applicants to challenge any action or inaction within 30 days, meaning “there is not merely a likelihood but a certainty that litigation will result,” they said. Significant cost associated with local governments complying with the order will be “irreparable injury,” but a stay’s harm to industry won’t be that much, cities said. Opponents failed to rebut the “central point” that the order “conflates" Communications Act section 253(a) and (c) "by finding that fees that exceed costs are prohibitory and the only fair and reasonable fees are those limited to costs,” the localities said. “If Congress intended to preserve fair and reasonable compensation from preemption even when it effectively prohibited an entity’s ability to provide service, then it cannot be true that fair and reasonable compensation is limited to only that which is not prohibitory. … The notion that Section 253 permits the FCC to accomplish via preemption what it cannot do via regulation simply underscores that the agency’s view of 'preemption' is untethered from Constitutional bounds.”