City of Portland v. United States, No. 18-72689 (9th Cir. 2020)Annotate this Case
The Ninth Circuit granted in part and denied in part petitions for review of three FCC orders issued in 2018 concerning the newest generation of wireless broadband technology known as "5G." Two of the orders, known as the Small Cell Order and Moratoria Order, spell out the limits on local governments' authority to regulate telecommunications providers. The third order, known as the One Touch Make-Ready Order, was intended to prevent owners and operators of utility poles from discriminatorily denying or delaying 5G and broadband service providers access to the poles.
The panel held that, given the deference owed to the agency in interpreting and enforcing this important legislation, the Small Cell and Moratoria Orders are, with the exception of one provision, in accord with the congressional directive in the Telecommunications Act of 1996, and not otherwise arbitrary, capricious, or contrary to law. The exception is the Small Cell Order provision dealing with the authority of local governments in the area of aesthetic regulations. The panel held that to the extent that provision requires small cell facilities to be treated in the same manner as other types of communications services, the regulation is contrary to the congressional directive that allows different regulatory treatment among types of providers, so long as such treatment does not "unreasonably discriminate among providers of functionally equivalent services." The panel also held that the FCC's requirement that all aesthetic criteria must be "objective" lacks a reasoned explanation.
The panel upheld the third order, holding that the FCC reasonably interpreted Section 224 of the Act as a matter of law, and the order is not otherwise arbitrary or capricious. The panel rejected petitioners' challenges to four secondary aspects of the order regarding rules for overlashing, preexisting violations, self-help, and rate reform.