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League Coalition Files Opening Brief in Lawsuit Challenging FCC Small Cell Regulations

June 24, 2019
On June 10, the League, joined by a coalition of cities, counties, and other state municipal leagues, filed its opening brief in the Ninth Circuit Court of Appeals challenging the FCC’s adoption of the small cell regulations on Sept. 26, 2018, which went into effect on Dec. 25, 2018.
In short, the FCC’s regulations:
  • Significantly shorten the period and likely overwhelm cities with thousands of complex small cell applications to process within 60 or 90 days;
  • Prohibit the ability for cities to impose fees for basic cost recovery for reviewing complex small cell applications to $100 per site;
  • Prohibit cities from imposing fair market rates for the private use of taxpayer funded public property at $270 for the installation of small cell wireless facilities; and
  • Lower standards for aesthetic review and undergrounding, historic, and environmental requirements to those that are “reasonable, comparable” requirements for other rights-of-way users, and published in advance. 
The League Coalition’s opening brief argues that the FCC improperly expanded the definition of the “prohibit or effectively prohibit” provision of federal law in excess of what Congress intended when it passed the law, and in a manner that is contrary to the controlling interpretation of that provision by the Ninth Circuit and other federal circuit court of appeals. The brief also makes two constitutional arguments that the regulations constitute a taking under the Fifth Amendment and violate the “anti-commandeering” provisions of the Tenth Amendment. Briefing will continue throughout the summer and, unless extensions are granted, will be completed in early September.
The League thanks Tripp May of the Telecom Law Firm for representing the League Coalition in this litigation.

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