Local Governments Considering Challenges to 9th Circuit Infrastructure Ruling

“The 9th Circuit got it right by handing an overwhelming victory to the FCC. This is a big win for wireless broadband,” said Wireless Infrastructure Association President Jonathan Adelstein. “The 9th Circuit correctly deferred to the FCC based on the careful record it built and the authority provided by Congress. The FCC streamlined regulations to keep them up to date with new technology, winning decisively in a challenging circuit and with a diverse panel of judges, so we are confident that this decision will stand if other parties decide to appeal it further. Best of all, the 9th Circuit’s decision paves the way for more communities to get connected to wireless broadband when they need it the most.”

The 9th Circuit's remand on aesthetics pleased localities but there’s room to challenge other areas of the 9th Circuit decision, local government attorneys told us. Cost concerns might hold back some jurisdictions, some cautioned.

Appeal options include asking the three-judge panel for rehearing, seeking review from the full 9th Circuit panel or seeking appeal at the Supreme Court, the attorneys said. Judge Daniel Bress’ dissent on the fees issue likely helps localities’ case, they said. The local attorneys doubted the decision would embolden more FCC preemption short-term due to the little time before the election and uncertainty about who will lead and comprise the commission next year, they said.

NATOA General Counsel Nancy Werner has “concerns about the court’s analysis, and so we’re looking at possible appeal routes,” she said. The decision also left room for more “individualized” litigation on whether specific cases run afoul of the FCC rules, including certain local fees and on the moratorium issue where the court disagreed the rule is as limiting as local governments believe, she said. Localities are “happy to have a little bit more of their traditional authority back” on aesthetics, Werner said. Don’t expect a “sudden rollback in fees,” said Werner, because few communities have 5G and most were complying with the FCC order’s rate limits. It may mean “status quo,” but local governments “still think the FCC got it wrong,” she said. “The court didn’t tie the FCC’s fee analysis back to the statute the way it did with the aesthetic portion of the ruling, which was disappointing.” Expect much discussion at NATOA’s virtual annual conference next week, she said.

Many localities are deciding what to do, said telecom attorney Ken Fellman, who represented Seattle and some other local challengers. The former NATOA board member sees legal flaws in the decision and thinks “the case is not over,” but none of his clients has committed to an appeal, he said. Fellman noted many local governments face cost constraints because they’re involved in two other federal appeals -- of the FCC’s June wireless infrastructure declaratory ruling in the 9th Circuit and last year’s cable local franchise authority order in the 6th Circuit. COVID-19 adds to the budget crunch, he said. Fellman was glad the court agreed with the FCC's not including a deemed-granted provision on shot clocks, but he expects debate on that issue will continue among state and federal legislators.

The court decision probably won’t slow the FCC's preemption push, said Spiegel McDiarmid’s Tim Lay, but “I don’t think winning speeds them up because they’re already going full speed.” No decision has been made whether to appeal, though there’s room to challenge, said Lay, representing San Francisco and some other localities. Localities won on aesthetics and -- in a way -- on the moratorium issue because the opinion’s language narrowed what was barred, he said. The decision on fees “wasn’t good news,” said Lay, noting it was “very frustrating” that the court didn’t respond to many of local governments’ arguments on that.

The court didn’t leave much “wiggle room” for the FCC to restore its full aesthetics preemption, Werner said. Fellman said the FCC could certainly try, but the calendar and Commissioner Mike O’Rielly’s status might limit action this year: “If there’s no change in the administration, then they obviously have more time to do it.”

“The court’s decision will help promote the rapid deployment of small cell network infrastructure and thereby increase the speed by which 5G services reach most Americans,” blogged Perkins Coie’s Marc Martin: “But these benefits come at the cost of diminishing the role state and local governments and utility companies play in infrastructure deployment.”

“State and local governments prevailed in maintaining authority over aesthetic approval over infrastructure, at least for now,” Martin told us. The 9th Circuit “remanded that issue to the FCC, where the battle will be rejoined,” he said: “State and local governments could also appeal their loss on the preemption issue, but there is no guarantee that the Supreme Court would hear the appeal, or that the Supreme Court would view the merits more favorably to state and local governments.”

Jeffrey Westling, R Street Institute technology and innovation policy fellow, said pursuit of en banc review is the most likely option. The 9th Circuit’s decision was “definitely a big victory for the FCC and its efforts to continue updating outdated infrastructure,” he said. “There are still avenues for the local and state governments to seek" further judicial review and "it is possible that industry may feel the need to push further on a deemed granted remedy when a locality fails to make a decision within the FCC's shot clocks.”