The Supreme Court refused to hear an appeal by cities and municipalities of the FCC’s small cells order on Monday; the court gave no reason for the denial. It issued a terse “Certiorari Denied” in the case titled “City of Portland, et al. v. FCC.”
The original intent of the FCC’s small cells order in 2018 was to ease small cell siting and curb what telecoms said were excessive fees being charged by some cities and municipalities for permitting wireless infrastructure on publicly-owned land. The order limits what localities can charge for permitting wireless infrastructure to be sited within a public right-of-way and sets timetables that localities must follow to make a decision on a permit.
Mayors of at least 30 cities, five counties, and the National League of Cities, fought the FCC in court, Inside Towers reported. They called the decision an example of federal overreach.
The petitioners argued before the U.S. Court of Appeals for the Ninth Circuit last August. They asserted that to promote the deployment of small cells, the agency invalidated any state or local legal requirement that “materially inhibits a provider’s ability to engage in any of a variety of activities related to its provision of a covered service.”
The Small Cell Order, they said, “declared that “[right-of-way] access fees, and fees for the use of government property in the [right-of-way], such as light poles, traffic lights, utility poles, and other similar property suitable for hosting Small Wireless Facilities . . . violate Sections 253 and 332(c)(7)” unless those fees are “a reasonable approximation of the state or local government’s costs” of processing applications and managing rights-of-way or government-owned property.”
“Fees based on the fair market rental value of access to the right-of-way or municipal facilities thereon are preempted,” the petitioners argued. “The FCC also created a uniform nationwide limit on what constitutes a presumptively reasonable recurring fee for small wireless facilities in the right-of-way or municipal facilities in the right-of-way—$270/small wireless facility per year. The FCC placed on an individual locality the burden to cost-justify any fee above that amount.”
CTIA – The Wireless Association, the Competitive Carriers Association (CCA), Verizon and the Wireless Infrastructure Association (WIA) joined together to ask the court to deny the appeal. They stated the original appeal’s court decision “was correct and does not warrant review.”
The appeals court sided with the FCC last August. The petitioners then asked the Supreme Court to review the lower court’s decision.
Concerning Monday’s news that the court will not hear the case, CCA President/CEO Steve Berry said: “I am very pleased with the Supreme Court’s decision not to hear the case regarding the FCC’s Small Cell and Moratoria Orders. These Orders will clarify the legal situation and help promote 5G deployment around the country, which certainly will benefit consumers and the economy.”
“The Supreme Court was right to reject this effort to overturn the FCC’s reforms, which the 9th Circuit confirmed were based on strong legal authority,” WIA President/CEO Jonathan Adelstein told Inside Towers. “The FCC’s updated rules are successfully promoting 5G deployment and are vital to the success of the Biden Administration’s plans for historic investments in broadband infrastructure.” He added that WIA is promoting broadband access across the country, and looks forward to continuing productive conversations with “members of Congress, regulators, and the many interested stakeholders who share that goal.”
By Leslie Stimson, Inside Towers Washington Bureau Chief
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