TR Daily Court Stays Changes to Enhanced Tribal Lifeline Support
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Friday, August 10, 2018

Court Stays Changes to Enhanced Tribal Lifeline Support

In a per curiam opinion, the U.S. Court of Appeals for the District of Columbia Circuit today stayed provisions of the FCC’s 2017 Lifeline order that limited eligibility for enhanced tribal Lifeline support to facilities-based providers and to rural areas, pending a decision in the case on the merits, which the court said today the challengers are likely to win.

Assist Wireless LLC, Boomerang Wireless LLC (d/b/a enTouch Wireless), and Easy Telephone Services Company (d/b/a Easy Wireless); the National Lifeline Association; and the Crow Creek Sioux Tribe and the Oceti Sakowin Tribal Utility Authority are appealing the order adopted last fall in WC dockets 17-287, 11-42, and 09-197 over the dissents of the FCC’s two Democratic Commissioners. The FCC action also eliminated the “freeze” on changing Lifeline providers more than once a year and clarified that Lifeline will only support mobile broadband at 3G or higher service levels, barring support for “premium Wi-Fi” that requires a Wi-Fi hotspot (TR Daily, Nov. 16, 2017).

The FCC’s Wireline Competition Bureau had denied similar requests for a stay pending judicial review last month (TR Daily, July 5).

“Petitioners have demonstrated a likelihood of success on the merits of their arguments that the facilities-based and rural areas limitations contained in the Order are arbitrary and capricious. In particular, petitioners contend that the Federal Communications Commission failed to account for a lack of alternative service providers for many tribal customers,” the court said.

The court added, “Petitioners have provided evidence that many tribal customers will lose access to vital telecommunications services under the Order’s new eligibility requirements, and the Order fails to meaningfully consider this effect. Furthermore, the Federal Communications Commission has not shown that the historical record supports its assertion that these new requirements will encourage development of communications infrastructure in underserved areas, thus preventing mass disconnection. On the contrary, petitioners credibly assert that providers have generally declined to offer Lifeline service in many tribal regions in the nearly two decades since the implementation of the Tribal Lifeline program, and furthermore that the Order’s new eligibility requirements do not attract providers to expand into those previously-ignored regions.”

“Likewise, petitioners have demonstrated that they will suffer irreparable injury absent a stay. This court has held that ‘[r]ecoverable monetary loss may constitute irreparable harm only where the loss threatens the very existence of the movant’s business.’ … We have, however, judged allegations of unrecoverable monetary losses by a less stringent standard,” the court said.

It added, “The service provider petitioners here have shown that implementation of the Order will result in substantial, unrecoverable losses in revenue that may indeed threaten the future existence of their businesses. In addition, the tribal petitioners have shown that implementation of the Order is likely to result in a major reduction, or outright elimination, of critical telecommunications services for many tribal residents, which are vital for day-to-day medical, educational, family care, and other functions.

“Finally, the public interest favors a stay. While there may be some public benefit to eliminating unnecessary spending, the Tribal Lifeline program has been in existence for nearly two decades, and the Federal Communications Commission has not demonstrated that allowing it to continue in its current form while these consolidated cases remain pending will result in significant harm to the government or the public at large. The Federal Communications Commission has identified no evidence of fraud or misuse of funds in the aspects of the program at issue here. On the other hand, petitioners have shown a substantial risk that tribal populations will suffer widespread loss of vital telecommunications services absent a stay,” the court continued.

The likelihood of success on the merits, the likelihood of irreparable harm on either side, and the public interest are among the factors courts weigh in deciding whether to grant a stay pending a decision on the merits.

In today’s order, the court also directed that the case be assigned “the first available date” for oral argument following the completion of the briefing. Final briefs are currently due Sept. 10.

The cases consolidated under “National Lifeline Association et al.” (case 18-1026) have been assigned to the three-judge panel of Circuit Judges Sri Srinivasan, Patricia A. Millett, and Cornelia T.L. Pillard.

In a statement responding to the court’s action, Joe RedCloud, executive director of the Oceti Sakowin Tribal Utility Authority, said, “Our people have long suffered from flawed federal government policies and actions, so the Court’s decision today is an important step in righting past injustices and allowing residents of Tribal lands to obtain critical Lifeline services.” Gene DeJordy, attorney for the Crow Creek Sioux Tribe, said, “Residents of Tribal lands, like many low-income consumers, rely on Lifeline service from wireless resellers, who are the primary, and sometimes only, providers of Lifeline service. The victory today is for the people — Tribal members who cannot afford many of the basic necessities of life and rely on Lifeline service for their telephone and broadband needs.” —Lynn Stanton, [email protected]

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