Cases on FCC 5G Wireless Orders Largely Consolidated in 9th Circuit, May be Delayed

One case has already been delayed by an FCC request to hold it in abeyance while it reviews petitions to reconsider its regulatory decisions that could affect judicial review. Responding to an FCC motion, the 9th Circuit temporarily stayed its proceeding on a municipal challenge to the August moratorium ruling. A local government attorney said the commission could also seek court delays on challenges to a September ruling/order to remove local barriers to small-cell deployment (see 1809260029) and to the August pole-attachment order, both also subject of recon petitions.

House Commerce Committee Chairman Frank Pallone, D-N.J., and House Communications Subcommittee Chairman Mike Doyle, D-Pa., questioned the FCC about whether agency staff directed carriers who supported the September ruling/order to intervene in a bid to reduce the probability the U.S. Court of Appeals for the 9th Circuit would ultimately hear the case. “It has come to our attention that certain individuals at the FCC may have urged companies to challenge the Order the Commission adopted in order to game the judicial lottery procedure and intimated the agency would look unfavorably towards entities that were not helpful,” Pallone and Doyle wrote FCC Chairman Ajit Pai Thursday. “It would be inappropriate for the FCC to leverage its power as a regulator to influence regulated companies to further its agenda in seeking a more friendly court.” Friday, litigants including the FCC, AT&T, Sprint and Verizon didn’t comment.

The Democratic lawmakers sought information on whether any FCC staff threatened or took “adverse action” against any FCC licensee that refused to challenge the order, including by delaying consideration of items or issues “of interest” to the licensee. Pallone and Doyle urged Pai not to “limit your search to documents and communications maintained in the accounts and files of individual” FCC staff, but instead search all of the agency's information systems. The lawmakers sought a response within three weeks of the FCC's funding being fully restored at the end of the partial government shutdown. President Donald Trump said Friday he had reached a deal on a continuing resolution to reopen shuttered parts of the government through Feb. 15, which Congress was expected to have approved as soon as Friday night (see 1901240016).

The 10th Circuit was selected by a November court lottery that considered six timely challenges to the September item: by Puerto Rico Telephone in the 1st Circuit, Verizon in the 2nd, Sprint in the 10th and separate challenges by San Jose, Seattle and California’s Huntington Beach in the 9th. Selection of the 10th Circuit was considered good news for the FCC because the court is split evenly between Democratic- and Republican-appointed judges and considered more middle of the road, whereas the San Francisco-based 9th is considered the most liberal (see 1811060046).

More appeals of the September item surfaced after the lottery deadline. Maryland’s Montgomery County filed in the 4th Circuit (see 1812070029), North Little Rock in the 8th (see 1901030009). The D.C. Circuit received challenges from AT&T; the American Public Power Association; Eugene, Oregon; and Austin, Boston, Chicago and other big cities (see 1812120009). The 1st, 2nd, 4th, 8th and 9th circuits then transferred their seven cases to the 10th.

The 10th Circuit recently sent its eight September item cases to the 9th, where Portland, Oregon, challenged the FCC’s August moratorium ruling in Portland v. USA, No. 18-72869 (see 1901110018). Friday, petitioners, the FCC, DOJ and intervenors jointly responded (in Pacer) to the D.C. Circuit that none of them objects to the transfer to the 9th Circuit of AT&T v. FCC, No. 18-1294, and others. Separately, the D.C. court is hearing tribal challenges to a March wireless order speeding historical and environmental reviews in small-cell cases (United Keetoowah Band v. FCC, No. 18-1129).

Many Issues

“We’re trying to figure out what it all means,” said local government attorney Ken Fellman.

Though the August and September 5G decisions arose from the same docket and were based on the same legal interpretation -- which the 10th Circuit agreed with cities made them parts of the same order -- “there are multiple issues that are going to need to be briefed and argued,” said Fellman, who represents Seattle and some other municipal challengers. Local government attorneys “are talking about this and trying to figure out what do we think the best way is to address this,” he said: The court will have to decide how best to handle process, “and we’re going to have to make it work.” In a Friday joint motion (in Pacer) at the 9th Circuit, local governments requested a case management conference, a step reserved for complex appeals, to develop a briefing plan and schedule.

The FCC asked the 9th Circuit to hold in abeyance the Portland case on the August moratorium ruling, given local recon petitions. The court Dec. 20 partially granted the motion and stayed proceedings for 60 days, with the FCC and DOJ to file a status report at the end of that period, "which may include a motion for a further stay of proceedings."

The agency could ask the 9th Circuit to delay the September 5G item cases (Sprint v. FCC, No. 19-70123 and others) pending a municipal recon petition, said Gerard Lederer, a Best Best local government attorney. If so, he said, localities could respond by asking the court to stay the effectiveness of the related rules, given uncertainty about when the FCC will act on the petition. He said a previous case languished for seven years during FCC reconsideration, and "we don't want to be in a position where they sit on a case for another seven years." He noted that when the 10th Circuit denied a stay request, it cited the lack of an "irreparable harm" showing, but with the rules in effect, localities are starting to see such harm.

Electric utilities challenged the August pole attachment order in the 11th Circuit (American Electric Power Service v. FCC, No. 18-14408). The FCC Oct. 30 moved to transfer the case to the 9th Circuit, arguing it should be consolidated with the Portland moratorium case involving the same commission item. Utilities opposed the motion, arguing the Portland case doesn't involve the "same order" being challenged in the 11th Circuit.