9th Circuit Mostly Sides With FCC in 5G Local Preemption Case
The 9th Circuit U.S. Court of Appeals mostly upheld the FCC’s wireless infrastructure orders in a Wednesday opinion (in Pacer) in the consolidated case, despite claims by local governments that the agency inappropriately preempted their authority in its effort to streamline 5G deployment.
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Deferring to FCC interpretation of the Telecom Act, the panel said “the Small Cell and Moratoria Orders were, with the exception of one provision, in accord with the congressional directive in the Act, and not otherwise arbitrary, capricious, or contrary to law.” It rejected Fifth and Tenth amendment challenges to both orders. The panel upheld the one-touch, make-ready order and rejected challenges to parts on overlashing, preexisting violations, self-help and rate reform.
The one exception was the small-cell order’s provision on local authority to regulate aesthetics. “To the extent that provision required small cell facilities to be treated in the same manner as other types of communications services, the regulation was contrary to the congressional directive that allowed different regulatory treatment among types of providers, so long as such treatment did not ‘unreasonably discriminate among providers of functionally equivalent services,’” it said. The FCC requirement that aesthetic criteria must be “objective” lacks reasoned explanation, the court added. The court vacated those parts of the rule and remanded them to the FCC.
Judge Daniel Bress disagreed with upholding the FCC preempting any fees to telecom providers that exceed a locality’s costs. Bress said the FCC failed to adequately explain how all above-cost fees would equal an “effective prohibition” on service under sections 253 and 332 of the Act.
The FCC, NATOA, National League of Cities and attorneys for local petitioners didn't comment right away.