A trial judge has dismissed a challenge to a state law limiting cities’ ability to regulate new wireless installations on utility poles, but plaintiffs called the ruling procedural and may re-file the lawsuit.
In a decision that went against the Florida League of Cities, Fort Walton Beach, Naples and Port Orange, Circuit Judge John Cooper ruled in favor of Secretary of State Laurel Lee and the state Department of Revenue’s arguments to toss out the case.
A 2017 Florida statute, along with amendments to it made by the state legislature last year, preempts municipalities’ powers to manage utility poles in public rights-of-ways, the lawsuit filed last August states. The parties also complain that the law will subject cities to uncapped attorney fees if municipalities adopt ordinances that are later determined to violate the state preemption.
“Plaintiffs seek declaratory and injunctive relief to declare these provisions unconstitutional, to expunge such provisions from the statute and to enjoin their enforcement,” the lawsuit says.
A League of Cities statement emailed to the Florida Record maintains that the plaintiffs’ arguments in the case remain credible.
“The trial judge’s decision to dismiss the lawsuit against the secretary of state and Florida Department of Revenue as not being proper parties (defendants) is a ‘procedural’ setback, but the Florida League of Cities and other plaintiff cities believe their ‘substantive’ claims of the statute in question being unconstitutional have substantial merit,” the statement says. “However, at this point in time the plaintiffs have decided not to appeal the ‘procedural’ setback. Also, no decision has been made to re-file the lawsuit.”
The bill that was signed into law last year prohibits cities from requiring telecom companies to pay permit fees for the use of city rights-of-ways – unless the municipality had a permit fee in place as of Jan. 1, 2019. Cities would also be barred from exercising any control over equipment installed by the communications firm, such as 5G wireless technology.
The plaintiffs view the restrictions as a taking of municipal property in violation of the state constitution and a breach of municipalities’ home-rule powers. Cities’ utility poles would also be treated differently from those poles under the jurisdiction of the Florida Department of Transportation, the lawsuit states.
The new-generation 5G wireless technology would provide faster online surfing speeds for computer users, but the technology requires the installation of small network antennas throughout local communities.