Ninth Circuit decision restoring local discretion over design standards for small cell wireless facilities stands

Jul 7, 2021

On June 28, 2021, the United States Supreme Court confirmed that it will not review the Ninth Circuit’s decision in City of Portland, et al v. United States.

The Ninth Circuit’s decision, summarized in more detail in a previous article, was largely positive for local governments in California because it struck down aspects of the Federal Communications Commission’s small cell order that limited cities’ ability to regulate the location and design of small cell wireless facilities.

Unfortunately, there were other parts of the decision that were not-so-positive for cities. For example, the decision upheld aspects of the small cell order that limit the fees and ongoing rent that cities can charge for wireless facilities in the public right-of-way. For this reason, the coalition of local governments and local government associations that initiated the litigation — including the League of California Cities —  joined a petition seeking review of the decision by the United States Supreme Court. 

With the Supreme Court’s denial of the petition, the Ninth Circuit’s decision will stand. Cities that have questions about the impact of this decision on their city should consult with their city attorney.