Only FCC, Not Judiciary, Is Vested With Section 253 Preemption Authority: Cert Petition

Pasadena, Texas, seeks the reversal of the 5th U.S. Circuit Appeals Court affirmation of the district court’s judgment that Section 253 of the Telecommunications Act preempts the spacing and undergrounding requirements in the city’s design manual for the installation of small cells and support poles in its public rights of way, said the city’s U.S. Supreme Court cert petition (docket 23-698). The petition was filed Dec. 26 and docketed Thursday, said a clerk's notice Friday.

The 5th Circuit ruled Aug. 4 that Pasadena’s design manual imposed burdensome requirements on Crown Castle’s small-node networks, and was part of the battle between telecommunications providers that are trying to expand 5G wireless services and municipalities that are resisting that expansion (see 2308070002). The 5th Circuit on Sept. 25 denied the city’s petition for a rehearing or rehearing en banc (see 2309260032).

SCOTUS should grant Pasadena cert to “vindicate” congressional intent to “entrust” only the FCC with authority to preempt state and local regulations under Section 253, said the city’s cert petition. Despite the absence “of any privately enforceable right” under Section 253, the 5th Circuit wrongly held that Crown Castle may sue the city “in equity” to preempt the design manual’s spacing and undergrounding requirements, it said.

The equitable action authorized by the courts “has no basis” in either the Supremacy Clause or general equity, said the cert petition. The Supremacy Clause doesn’t support an equitable action to preempt state and local regulations under Section 253, it said.

SCOTUS “put this theory to rest” in its 2015 decision in Armstrong v. Exceptional Child Center when it held that the Supremacy Clause isn’t the source of any federal rights, and certainly doesn’t create a cause of action, said the cert petition. SCOTUS held that rather than create a privately enforceable right, the Supremacy Clause establishes only a rule of decision that instructs courts what to do when state and federal laws clash, it said.

General equity doesn’t support Crown Castle’s action because Section 253 doesn’t create a private right, and without a private right, “there should be no equitable remedy,” said the cert petition. If a private action in equity to enforce a federal statute that doesn’t create a private right ever exists, it certainly doesn’t arise to enforce Section 253, it said.

Congress created “its own clear mechanism” for enforcing Section 253, said the cert petition. That congressional mechanism doesn’t include “private equitable actions to preempt and enjoin enforcement” of state and local regulations, it said.

Congress “vested the FCC alone” with authority to preempt state and local regulations under Section 253, said the cert petition. Congress charged the FCC with making “a balanced and nuanced determination” by preempting state or local regulations “only to the extent necessary to resolve any conflict” between the state or local regulation and Section 253, it said.

If more is necessary to demonstrate that Congress didn’t intend to authorize courts to preempt state and local regulations, it’s found in the fact that Section 253(d) is “just one part” of the congressional enforcement mechanism, said the cert petition. Congress created a legal remedy “by allowing a party to sue to set aside” the denial of or failure to act on an application for a permit to install cellular equipment, it said.

But Crown Castle didn’t avail itself of that legal remedy because it didn’t sue to set aside the city’s denial of any permit application, said the cert petition. Rather, Crown Castle “sought a different and much broader remedy than the remedy Congress provided,” it said. It sought a declaration preempting Pasadena’s spacing and undergrounding requirements and an injunction prohibiting the city from enforcing those requirements, it said.

Congress clearly never authorized courts to grant that “sweeping remedy,” said the cert petition. “Far from it, Congress mandated the FCC alone make a tailored determination” by preempting state or local regulations “only to the extent necessary” to comply with Section 253, and to do so “only after providing notice and the opportunity for public comment,” it said.

SCOTUS should grant cert because Section 253(c) places state and local measures to manage public rights of way “beyond the reach” of Section 253 preemption, said the petition. The district court and the 5th Circuit “mistakenly read” Section 253(c) to place state and local authority to manage public rights of way outside the scope of Section 253 preemption only if the state or local government “exercises that authority in a manner that is nondiscriminatory and competitively neutral,” it said.

That “mistaken reading” conflicts with the plain language of Section 253(c), said the cert petition. Other circuit courts and the FCC “have made the same error,” it said. SCOTUS should grant cert to provide guidance on applying Section 253(c) “in accordance with its plain meaning,” it said. Crown Castle's responding brief is due Jan. 29.