Adapted from an article by Kelcee Griffis, Jun 28, 2021, Original Law360 article here
On Monday, the U.S. Supreme Court shot down a bid by municipalities that sought to challenge a Federal Communications Commission order meant to streamline the deployment of densifed 4G/5G so-called “small” cells.
The case is City of Portland, Oregon, et al. v. Federal Communications Commission et al., case number 20-1354, in the Supreme Court of the United States. In a one-line order, the high court denied a petition for a writ of certiorari filed by dozens of local governments in March. As is customary, the court did not explain its reasoning.
The three FCC orders at the heart of this dispute generally sought to reduce delays and costs that could slow the introduction of 4G/5G networks to American communities. The so-called “small”” cell order that’s primarily being contested set standard rates, terms and presumptive deadlines for the approval of new small cells and interpreted prohibitive local policies as effective barriers to deployment, leaving the door open for carriers or residents to sue if they believe they’re being mistreated.
The Ninth Circuit ruled in August that the presumptive limitations within deference granted to the FCC. But in March, dozens of local governments — including Atlanta, Boston, Chicago, Dallas, Los Angeles and San Francisco — appealed the panel’s decision that they said ran roughshod over local authority.
They argued that the Ninth Circuit’s acceptance of the small cell order “blesses an FCC ruling that does not respect the authority of state and local governments.”
Countering the municipalities, the wireless industry — including CTIA, the Competitive Carriers Association and the Wireless Infrastructure Association — told the high court that the FCC hasn’t tied localities’ hands when making decisions about where and how wireless equipment may be installed. In fact, the groups asserted, cities are still able to deny wireless carriers’ installation plans within reason and collect “reasonable costs” associated with local review processes.
Tom Johnson, the FCC’s former general counsel, tweeted Monday that the Supreme Court’s rejection of the case is “great news for consumers.”
In a statement provided to Law360, the FCC indicated it still stands behind the Trump-era small cell rule even though Democratic acting Chairwoman Jessica Rosenworcel now sits at the agency’s helm. In 2018, she cast a partial dissent over language in the order that she said alienated state and local government leaders with whom the FCC should be collaborating.
An FCC spokesperson said:
*”Streamlining deployment processes can help us build the next generation of wireless service in this country. We will be even more successful if we can make states and cities our partners in that effort. The FCC is moving ahead on a range of policies to reach 5G service that is fast, secure, resilient and available nationwide.”
FCC Republican Brendan Carr, who led the development of the small cell order, also said he’s gratified that the rules will remain intact.
“I am very pleased that the Supreme Court has decided to leave the FCC’s reforms in place. Since we modernized these infrastructure rules in 2018, nearly a dozen states have adopted new small cell laws.”
The cities are represented by Joseph Van Eaton and Cheryl A. Leanza of Best Best & Krieger LLP.
The FCC is represented in-house by P. Michele Ellison, Jacob M. Lewis, Sarah E. Citrin and Scott M. Noveck.
The wireless industry is represented by Thomas Scott Thompson of Mintz Levin Cohn Ferris Glovsky and Popeo PC, Joshua S. Turner, Sara M. Baxenberg and Travis Stoller of Wiley Rein LLP, Henry Weissmann, Ginger D. Anders and Jonathan S. Meltzer of Munger Tolles & Olson LLP and Jennifer P. Bagg of Harris Wiltshire & Grannis LLP.