NDIA has joined with the Communications Workers of America and Public Knowledge to submit a “friend of the Court” brief in a lawsuit seeking to overturn a Federal Communications Commission order that preempts municipal authority over the use of public property for 5G wireless deployments.

The three organizations’ amicus brief was filed with the U.S. Ninth Circuit Court of Appeals in San Francisco.

The case involves the FCC’s September 26 “declaratory ruling” which largely preempted local government control of approval timelines, conditions and fees for corporate deployment of 5G equipment on public property (like light poles) and rights of way. A petition for review of the ruling was filed in October by the City of Portland, Oregon and promptly joined by two dozen other municipalities including San Francisco, Chicago, Los Angeles, Las Vegas, Philadelphia and San Jose.

In today’s amicus brief, NDIA, the Communications Workers and Public Knowledge emphasize “the negative effect the Order will have on the digital divide and public safety”:

In order to protect public welfare and address the digital divide, states and localities must be able to charge appropriate fees. Millions of Americans do not have access to high quality internet. Those on the wrong side of the digital divide are left out of advantages in areas as diverse as economic development, education, healthcare, and civic participation. As repeatedly acknowledged by the Commission, in geographical areas where there is no business case for deployment, we will not see universal service without policy intervention. Cities like San José and New York are doing the important and innovative work of addressing the digital divide, and the Order would prevent efforts like those from being implemented.

Localities are also tasked with ensuring public safety in the rights-of-way, from ensuring heavy equipment will not fall on pedestrians, to protecting lines of sight for traffic safety and the integrity of vertical infrastructure. Aggressive shot clock standards and arbitrary interpretations of the “effectively prohibit” standard prevent localities from effectively conducting this long-established role.

According to NDIA Executive Director Angela Siefer, the case has major implications for digital inclusion and equity: “The FCC’s rules are setting the stage for a new digital divide — those who do and do not have access to 5G. If local governments can’t ensure that 5G networks are equitably deployed, poorer communities will be last in line for upgraded broadband service, if indeed they ever receive it. We’ve seen this before with fiber deployments. Additionally, cities are losing an important tool for supporting the digital inclusion programs that those communities need.”

Here is the As filed – Motion and Brief filed with the Ninth Circuit Court of Appeals.