NYC, NATOA, Municipal Electrics Urge 9th Circuit to Toss FCC Small-Cells Orders

cities to lease their rights-of-way and municipally owned property on the FCC’s terms implicates the Takings Clause and the Tenth Amendment by denying just compensation, infringing on local police powers, intruding on traditionally local spheres of control, and conscripting local governments to administer a federal agency’s regulatory agenda,” the city and local government association wrote (in Pacer). "But this Court need not actually determine whether the Orders are irrational or unconstitutional, because the FCC lacks authority to take these steps that -- at a minimum -- dramatically shift the federal-state balance and intrude on the core of traditional local prerogatives.” Several state associations of municipal utilities said the September order endangers public safety. It “is a blatant effort by the FCC to strengthen the hand of carriers in negotiations with local governments over small wireless deployment, and to limit the ability of local governments to negotiate to protect the public interest around small wireless facilities,” filed (in Pacer) Iowa, Minnesota, Missouri and Arkansas municipal utility associations. That “will significantly and negatively impact local governments’ ability to protect and serve public property, safety and welfare,” they said. California, Virginia and Florida municipal utility groups wrote (in Pacer) that “Congress explicitly denied the Commission authority to regulate the rates, terms, and conditions of access to public power utility poles.” The order was challenged on similar grounds by American Municipal Power (in Pacer) including electric systems in Delaware, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia, and the Nebraska Municipal Power Pool (in Pacer), representing communities in Colorado, Iowa, Kansas, Nebraska, North Dakota and Wyoming.