“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Ninth Circuit judge Daniel Bress argued in dissent that local governments should be able to charge high fees for allowing the construction of equipment necessary for 5G broadband service, even though the Federal Communications Commission (FCC) found that such fees could limit 5G service. The majority, which included George W Bush nominee Jay Bybee, rejected that claim and upheld the FCC’s decision in its August, 2020 decision in City of Portland v. United States.
A number of localities, tech companies and others filed challenges to FCC orders concerning the newest generation of broadband technology known as 5G, which requires the installation of many wireless facilities that are subject to both federal and state regulation. Most of the FCC regulations were upheld, and the three Ninth Circuit judges who reviewed the challenges were generally in accord, with the exception of one important FCC order. That order limited the ability of state and local governments to charge fees for facilities placed in their jurisdictions that are significantly higher than the governments’ “actual costs.” The Ninth Circuit majority, including George W. Bush nominee Jay Bybee, upheld that so-called Small Cell Order.
After careful study and rulemaking, the majority explained, the FCC found that when local governments “charge fees in excess of their costs” to wireless providers, they take funds from such providers “that would otherwise be used for additional 5G deployments in other jurisdictions,” and that limiting fees will lead to “additional, faster deployment” of 5G technology across the country. In addition, the majority continued, the FCC found that high fees “reduce the availability of service in the jurisdiction charging the fee” by delaying deployment. Looked at “[i]n the aggregate,” the majority went on, the FCC concluded that above-cost fees were having a “prohibitive effect” on 5G deployment “on a national basis.” Despite challenges by local governments, the majority found that the FCC’s rule was based on the record and well within the agency’s discretion under the Telecommunications Act.
Trump judge Bress dissented and would have invalidated the Small Cell Order. Even though he conceded that “exorbitant fees can impede the deployment of communications infrastructure,” he claimed that the order was not supported by the record and an “adequate explanation” by the FCC. In particular, he asserted that it contradicted a previous Ninth Circuit decision in the Qwest case, where the court declined to hold that “all non-cost-based fees” are impermissible under the Telecommunications Act. That decisionm he asserted, conflicted with the FCC’s order.
The majority specifically explained why they disagreed with Bress. They went into detail on the FCC’s reasoning and findings, and specifically found that there was “substantial evidence” for its factual conclusions. With respect to the Qwest case, they continued, that decision concerned a challenge to a “particular city’s fee that was not based on costs”, and the court ruled that while that fee was invalid, it was not necessarily holding that all individual fees not based on cost were invalid. That language has “no relevance” to this case, the majority concluded, where the court was considering a “nationwide administrative regulation” that was warranted by the FCC’s “careful study” and proper rulemaking.
As a result of the majority decision, the FCC’s Small Cell Order was approved, which will facilitate more 5G service and benefit consumers across the country. If it had been up to Bress, however, that rule would have been invalidated, harming the spread of 5G service and many consumers.