Communities fighting for local control over public right of way

BB&KBest Best & Krieger, together with Spiegel & McDiarmid, filed reply briefs today asking the U.S. Supreme Court to review a decision by the U.S. Ninth Circuit Court of Appeals that upholds FCC rules limiting local authority to control the placement of small wireless facilities and to obtain fair rents for use of public property.

The case is City of Portland v. FCC, 20-1354.

The petition for certiorari and reply, filed on behalf of a coalition of local governments and their associations, argue that the Ninth Circuit’s decision to uphold the FCC order violates Supreme Court precedent, binding appellate precedent and creates a conflict among the federal circuit courts. The filings were opposed by the FCC and the wireless industry, and supported by briefs filed by the International Municipal Lawyers Association, the National Association of Counties, the U.S. Conference of Mayors and the Government Finance Officers Association.

The case is important because it addresses the FCC’s ability to regulate both states and thousands of local governments. It allows the transfer of billions of dollars in state and local revenue to the wireless industry by allowing the FCC to set the rates, terms and conditions under which states and local governments must allow the wireless industry and telecommunications providers access to the public rights of way and municipal property in the right of way.

The justices are expected to consider the petition in their last conference before summer recess on June 24 and to issue their decision as to whether to take the case shortly thereafter. If the petition is granted, briefing on the merits and oral argument would occur next term.

Each year, the Supreme Court receives about 7,000-8,000 petitions for certiorari and grants about 80 of those. Noted Supreme Court watcher, SCOTUSblog, highlighted the petition as one of its “petitions of the week.”

BB&K Partner Joseph Van Eaton is counsel of record in the case. BB&K is proud to partner with Spiegel & McDiarmid LLP on behalf of the petitioners. Also on the brief is BB&K Of Counsel Cheryl A. Leanza, who represented nonprofit clients on the merits before the U.S. Supreme Court in FCC v. Prometheus Radio Project.

The reply brief can be found here. To see the petition for writ of certiorari filed previously, click here.

Best Best & Krieger LLP is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With more than 200 attorneys, the law firm has 10 offices nationwide, including Los Angeles, Sacramento, San Diego and Washington, D.C. For more information, visit or follow @BBKlaw on Twitter or @bestbestkrieger on LinkedIn.