Lawyers Disagree on Infrastructure Case Outlook; Cities See Problems Ahead
Wiley’s Joshua Turner said a case argued in the 9th U.S. Circuit Court of Appeals in February on FCC wireless infrastructure orders will be easy for judges to decide in favor of the FCC, in an FCBA discussion Tuesday. Best Best’s Joe Van Eaton, who argued the case on behalf of Portland, Oregon, and other cities, expects the court to reject the FCC’s approach. The FCC declined to send a speaker. Judges heard the case in February (see 2002100054) and Turner represented industry there.
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Turner said the court is likely to give the FCC deference, under Chevron and other precedent. Is what constitutes “an effective prohibition” an “ambiguous question?” he asked. A “fair reading” of Sections 253 and 332 of the Telecom Act is “there’s a lot of room for maneuver for the FCC in terms of designing a test for what constitutes an effective prohibition,” he said.
“It’s more of a policy disagreement about where they drew the line rather than a legal disagreement about whether or not the FCC had authority to draw the line,” Turner said. The agency adopted “a fairly reasoned and pretty measured approach” on small-cell fees, he said: “The FCC didn’t adopt a cap. The FCC didn’t say you can only charge X number of dollars for placing a wireless facility in your right of way.” The agency allows local governments to charge higher fees if they can show their costs are high and the fees are reasonable, he said.
Cities relied in part on the 9th Circuit’s earlier decision in Sprint v. San Diego, Turner said. Sprint was “a very narrow case that was focused on correcting a decision that an earlier panel in the 9th Circuit had made that sort of overinterpreted Section 253,” he said. The record shows the FCC was addressing real problems, he said.
A big concern for local and state governments is “federalism” and “what are the limits of the federal government’s authority over locally owned and controlled property,” Van Eaton said. “That’s an issue that comes up over and again in this appeal.” One big question the court will have to address is whether Section 253 even applies to wireless siting, he said. Judicial circuits vary on what constitutes effective prohibition, he said. Under precedent in the 9th Circuit, the term has a “plain meaning” that requires it to be “an actual prohibition,” he said: “It has to have an actual prohibitory effect, not just a speculative one. That’s a very different standard than what … the FCC adopted.” Van Eaton noted the Supreme Court is considering whether to adopt a new standard beyond Chevron.
Van Eaton said local governments also challenged a prohibition on moratoriums and whether the rule makes sense. There has never been an adequate explanation from the FCC, he said. “Is this rule sensible at all?” he asked. “Does it define a category of events that actually create an effective prohibition?”
Speculation is growing on Chevron, Turner conceded. “There might be sort of seismic shifts in the way the Supreme Court thinks about jurisdiction … thinks about power and authority of administrative agencies that could have an impact on this order,” he said.
On a second panel, speakers discussed the effect of the pandemic on small-cell deployment. Industry reports siting delays (see 2004130050).
At the beginning of the pandemic, there was “a lot of confusion” about the FCC’s infrastructure orders and what still applied, said Angelina Panettieri, legislative manager at the National League of Cities. “It just took time for people to adapt to telework.” More remote meetings and working from home were going to happen anyway, but what would have taken years took less than a week, she said. “There were definitely some hiccups at first.”
Local governments face big financial problems from COVID-19 and few are eligible for federal help, Panettieri said. “Austerity does not generally drive people to innovate” but to “do what they’ve already done, but less of it and slower,” she said: “It’s going to get rougher before it gets better.” Localities may have to raise rates for siting to make up for shortfalls, she said.
Abbie Gruwell, National Conference of State Legislatures senior director-policy, said many states are updating “antiquated” technology. Few small-cell bills have passed so far in 2020, but some legislatures are coming back in session after having to adjourn because of COVID-19, she said.
There have been “a lot of improvements” in processing applications since the lockdown started, said John Howes, Wireless Infrastructure Association government affairs counsel. WIA members are having a “pretty decent amount of success getting cells deployed,” he said. Cities that were shut down are allowing permitting, he said. Most now have open portals and dedicated email addresses, he said: They no longer require a “wet signature” or raised seal on a document, because it’s no longer possible to do things other than electronically.