Cities May Expand Suits Against Texas, Florida as States Increase Pre-emption
Texas cities soon plan to revise their lawsuit contesting the state’s 2017 small-cells law to additionally challenge a law signed June 14 related to local telecom fees, an attorney for the suit’s lead plaintiff told us this week. McAllen and the other cities take a risk combining the cases, said Ewell Brown's David Brown. Florida cities are deciding whether to amend their own lawsuit against that state’s small-cells law after Gov. Ron DeSantis (R) Tuesday signed a wireless bill tightening restrictions on cities.
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McAllen plans an amended complaint in 30 to 45 days, emailed City Attorney Kevin Pagan. The localities are combining the new complaint with the old one because the Texas Constitutional “claims are virtually identical,” he said. “Both amount to a ‘gift’ of public property … to private companies.” This new state law (SB-1152) would stop municipalities from charging telecom providers twice when they use the right of way for phone and video; it would require a provider pay the municipality only the larger of the two sums due (see 1905220012).
The cities asked a state court to indefinitely postpone a planned May 13 trial on their earlier complaint, in an April 16 filing. If SB-1152 is passed, "efficiency of the Court and the parties would be best served by amending their petition to include a challenge to that enactment in this action,” McAllen and others told the Texas District Court of Travis County. Cities expect to add defendants including private telecom and cable providers “who would be the beneficiary of an unconstitutional gift of public resources” under SB-1152, they said.
“Holding off on the trial was a big mistake,” emailed Brown, a Texas telecom attorney. “Whether the cities are right or wrong on the compensation issue relating to rights-of-way and poles for small cells under the 2017 legislation is a much cleaner question [than] the one this 2019 bill presents.” A federal court dismissed a separate municipal suit in March challenging the state law. The Texas governor and attorney general didn’t comment.
Texas cable pushed for SB-1152, which takes effect Sept. 1. “Both telecom and video providers transmit multiple services over one line -- just one access point,” so “two separate fees should no longer be assessed on providers or paid by customers,” the Texas Cable Association wrote Friday. The bill means “millions of Texans will see a line item fee erased from their monthly bill, saving customers millions of dollars annually.” Cities won’t be “unduly harmed” because “they will continue to receive a fee in every municipality where they currently collect for access,” and the plan protects municipal authority to charge a 1 percent franchise fee for public, education or governmental channels, said TCA. It declined comment Wednesday on the possible lawsuit.
Cities are “evaluating whether we need to amend” their own suit against Florida’s 2017 small-cells law to address the recently enacted SB-1000, emailed GrayRobinson telecom attorney Gary Resnick, representing the Florida League of Cities. The league says the 2017 law pre-empting municipal control of the ROW was unconstitutional in the home-rule state (see 1906180060)
Cities say the newly enacted bill worsens the 2017 law. AT&T said it's needed to respond to certain local governments the carrier claims are flouting the 2017 small-cells law (see 1904020026). “Smart policies” like SB-1000 “help bring investments in the kind of high-speed infrastructure that towns and cities need to keep residents and businesses connected,” said AT&T Florida President Joe York in a Wednesday statement.
Florida Attorney General Ashley Moody (R) asked to be dismissed from the case at the Florida Circuit Court in Leon County. The AG is “not a proper party to this action,” the complaint “fails to state a cause of action upon which relief can be granted,” and FLC “lacks associational standing,” Moody said in a Monday motion.
The AG gets to decide in which cases to participate, Moody said. “Plaintiffs’ lack of judiciable controversy deprives this Court of any jurisdiction over the action,” the AG wrote. “There is no threat of immediate injury.” The league says it has 400 municipal members, but only three are specifically listed as plaintiffs and not one of those “has received an application by a wireless provider for a permit under the Small Cell Statute or had to issue a permit to a wireless provider,” she said.
T-Mobile last week sued Wichita, claiming the city violated the Telecom Act by effectively prohibiting the carrier from providing wireless to part of the city when it denied its second application to install an 80-foot wireless facility on vacant commercial property.
T-Mobile “encountered a general, ‘not in my back yard’ (‘NIMBY’) opposition to wireless facilities in the target area,” said the carrier’s June 17 complaint (in Pacer) at the U.S. District Court for Kansas. “To provide the service consumers demand, T-Mobile must build wireless facilities that will provide wireless signal coverage and also adequate network capacity to accommodate the radical increase in use.” Wichita doesn’t comment on pending litigation, a spokesperson said Wednesday.
The FCC September small-cells order “addressed precisely the type of situation raised in this case,” noted T-Mobile. That order faces litigation by cities and others at the 9th U.S. Circuit Court of Appeals (see 1906180022).