San Jose Motion to Get 9th Circuit Review of Wireless Infrastructure Order Faces Uphill Battle
Cities may face an uphill battle convincing the 10th Circuit to transfer appeals of the FCC’s September infrastructure order to the 9th Circuit, said experts Friday. San Jose and other municipalities sought transfer in a Thursday motion (in Pacer) that questioned use of a judicial lottery to select the 10th Circuit. They argued Portland, Oregon’s 9th Circuit appeal of the August order pre-empting moratoriums should establish venue for appeals of the September order setting shot clocks and rate ceilings.
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Selection of the 10th Circuit last month was read as good news for the FCC because the court is split evenly between Democratic and Republican judges and considered more middle of the road, whereas the 9th Circuit is considered the most liberal and activist (see 1811060046). Local government groups filed three lawsuits in the 9th Circuit. Sprint sued in the 10th Circuit, Verizon in the 2nd and Puerto Rico Telephone in the 1st.
“The August Order and September Order can be treated as the same order,” San Jose and other cities told the 10th Circuit in case 18-9568. “Both orders are associated with the same dockets, arise out of the same administrative record, and govern aspects of an agency undertaking intended to accelerate deployment of wireline and wireless infrastructure.” There was nearly three weeks between Portland’s challenge of the August order and the triggering of a lottery for appeals of the September order, the cities said. “When a petition for review is not filed within ten days after the issuance of an order … the agency must ‘file the record in the court in which proceedings with respect to the order were first instituted.’”
“We will file our response to the motion soon,” a Sprint spokesperson said. The FCC, Sprint, Verizon, CTIA, Puerto Rico Telephone and the Competitive Carriers Association oppose transfer, but the Seattle group that sued separately supports it, San Jose said. The FCC, CTIA and CCA declined comment Friday.
“Seems like a long pass, and if the court takes it for what it is -- forum shopping -- I would not expect this will be received favorably,” said Wilkinson Barker's Ray Gifford. Municipalities’ argument is weak, said Georgetown Center for Business and Public Policy Project Director Larry Downes. “The only thread San Jose has to get around the very sensible law against forum shopping is to say that they filed first, even though pending the other appeals being filed no proceedings of any substance have actually occurred yet in their home circuit. … The whole point of the lottery was to avoid this kind of procedural posturing.”
There’s a good chance the motion will be denied “in the interests of preserving a strict reading” of court lottery rules, said Free State Foundation President Randolph May. Cities’ argument isn’t “frivolous,” given “the bifurcated nature of the proceeding and the way the rulings were released and the petitions for review were filed,” he emailed.
Expect a quick decision from the Denver-based court on San Jose's transfer request, blogged Tellus Venture Associates President Steve Blum, who consults for California local governments. "There’s not a lot of time left before the FCC’s wireless preemption ruling takes effect on 14 January 2019 and, whether it’s in Denver or San Francisco, there’s a lot of legal work."