The following is an annotated version of a transcribed comments from Priest River City Attorney, Katie Elsaesser (on what date_xxx?): Where the transcriber put in dots (…) below is where Elsaesser muttered or repeated herself, and brackets [ ] is where the transcriber couldn’t understand her.
Text Transcribed from Audio Recording
“My name is Katie Elsaesser. I’m the city attorney for Priest River. I obviously don’t have any decision-making power but when I went through all the paperwork…2020 started. In 2020, there was a decision in the 9th Circuit… we’re in the 9th – that specifically addressed the small cell order and that decision was entered, it got appealed to the Supreme Court.”
Wire America: No, the case was NOT appealed to the US Supreme Court. The challenge to the FCC Orders 18-133 and 18-111 were heard by the US Courts of Appeals, Ninth Circuit in Feb 2020 and the ruling was released in Aug 2020. See here –> https://wireamerica.org/ninth-circuit-case-re-fcc-18-133/
“They denied it so, where we sit the small order stands and that basically says that what the FCC rule says in their small order, there’s very few of the items in there that I would feel comfortable pursuing in an ordinance.
Wire America: Wrong again. Portions of Order 18-133 were vacated and remanded and the rest of the order is set up for case-by-case adjudication, since the order is not consistent with the 1996 Telecommunications Act and its Conference Report See here → https://wireamerica.org/ninth-circuit-case-re-fcc-18-133/ and https://wireamerica.org/1996-tca-conference-report/
“My greatest concern is what happens when we put these in there against what’s in their [?? as archive decision – can’t understand her]. The DC Court – that’s over there – and what happens when we then have to go through litigation?
Wire America: As long as the City follows Andrew Campanelli’s advice, the town will not get sued. See more here → https://wireamerica.org/campanelli/
“Taxpayer dollars are going to have to pay for attorneys to settle it … in my legal opinion – nothing to do with what your presentation has to do on that. When I look through – even today I looked, did a updated case law search to see if there’s any further appeal that would affect our district and it still stands, and the only part that the 9th Circuit addressed was on the design element that there has to be a clear line of what is no ongoing unduly burdensome design element. So I just want to present what I advised the Council in the past and what I’m advising, because I don’t want it to be my statements to be convoluted into what the Council opinion is looking at – and my legal advice to the City is, any delve into regulating what the FCC and the 9th Circuit that we are in federal district has objected to, I don’t want the City to bear that burden of a lawsuit.
Wire America: This is a tired excuse for caving into industry. A long as the City follows Andrew Campanelli’s advice, the town will not get sued. See more here → https://wireamerica.org/campanelli/
“Because we’ve seen it with our county [ ? ] outside council, because once you get sued in federal court over this regardless if it’s through the FCC or directly through a provider, it can be costly.
Wire America: Without any evidence for this statement, this is hearsay and non substantive. An expedited trip to federal court is actually very cost effective, per the 1996 TCA itself → https://wireamerica.org/compare/
Title 47 § 332(7)(B)(v):
“Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.”
“As of right now, I will be [honest?] we haven’t had any cell tower proposals brought to us in all the years that Rex [Director of Public Works] has been here and all the years I’ve been the city attorney there hasn’t been an application brought forth so I’m not saying that resolves any of you guys’ concern, I just want to put my legal advice as your counsel, I want to make sure that mine is, where our district is, the City of Portland v. the United States Case #969 Federal [____] 1020, that’s the case law that I see that applies to where we live and maybe that the District court will go up to the Circuit court and the Supreme Court will take it for review but as of right now, we’re in the 9th Circuit and they’re saying that the FCC small cell order stands.
Wire America: Elsaesser gets this wrong, as well. The City of Portland v. the United States Case is final. It cannot be appealed anywhere because all appeal deadlines have passed.
“[There was a question here, and Katie replied] “You might hear of the Moratoria [she spells it] Order, the small cell order 2018 FCC regulation – I’ll grab that because it’s on line – I just want to say that’s just my advice obviously today you’re bringing a proposal and I wanted to put out where my [???] of the search that was through today I did check, if there’s any new circuit court cases that are cited, that are being appealed at this point, and that’s not where I’m at.”
Wire America: What does that mean?
Anne C is given an opportunity, as the presenter, to rebut: [Not word-for-word]
“California is in the 9th District. There are a number of towns in California – I can share that with you, too – that have passed ordinances that limit the amount of power output,
Wire America: No CA towns of which I am aware have done this.
“that keep cell towers out of residential neighborhoods and keep them away from homes and schools, and they haven’t been sued. “
Wire America: The statement above is true of both Petaluma, CA and Mill Valley, CA.
“It’s been one year, some over two years – if they’re not going to sue people in California, they are not going to sue Priest River. They can put cell towers in our downtown district. We just want a limit on power; we want them to show us they can provide liability if someone sues us and goes after our bonds, and these are things you can have in your ordinance, specifically regarding noise.”
Wire America: These are all reasonable asks.
“I’m just telling you that’s where I stand on the ordinance proposed, that I’m not against what you’re saying, I’ve seen – I’m just speaking against being sued.”
Anne C replies:
“Just for your information, one of those expensive attorneys that she’s talking about was hired by Dalton Gardens to write an ordinance that will stand up against any kind of lawsuit […] has written an ordinance – Andrew Campanelli – has won a lot of lawsuits across the country where the FCC and Telecoms have tried… we want to keep these things away from our houses, we have children growing up that are affected. The August 13, 2021 ruling of the EHT/CHD v. FCC case was not appealed, and it was in the DC Circuit Court which trumps the district court.”
“We’re, in Idaho, in the 9th district, so …what you do in the 9th District goes to the 9th Circuit court; so if if it’s in the 9th district and they appeal it, it goes to their circuit, then it goes to the Supreme Court. So if that district [DC Circuit court] ruled on something, it’s not binding in Idaho.”
Wire America: This is just plain wrong. The DC Circuit rulings apply to the entire USA because the DC Circuit is not a geographic-specific circuit. It’s job is to review litigation and regulatory orders.
Anne: RE: the EHT/CHD v. FCC ruling:
“CHD is from California and EHT, Wyoming, yet this case was heard in the DC Circuit Court – it was a nation-wide ruling that the FCC must update its rules to take into consideration children and the environment… all we want is to put a few little changes to the ordinance. Your ordinance is small and Martin wanted it small so we submitted an ordinance with a few little changes and we never got a chance to have it heard. The updated version of the ordinance we have protects us by putting in distances and caps on power, and liability insurance to cover in case someone has a serious problem.”
Council then discussed it, wanting to hear more from residents (letters submitted included 12 from PR residents, and another 12 from people who live in rural PR and do business in PR, plus 7 people submitted comments who did not live in Priest River.