TR Daily FCC Denies Request to Stay Small Cell Order
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Monday, December 10, 2018

FCC Denies Request to Stay Small Cell Order

The FCC’s Wireless Telecommunications Bureau today released an order denying a request that the agency stay implementation of the small cell order pending judicial review.

The stay request was filed in October by the National League of Cities (NLC) and a group of local governments and associations.

In an order released today in WT docket 17-79 and WC docket 17-84, the bureau noted that the parties seeking the stay contend “that aspects of the Order conflict with various provisions of the Communications Act, are arbitrary and capricious under the Administrative Procedure Act, and violate local governments’ Fifth Amendment and Tenth Amendment rights. None of these arguments is likely to succeed on the merits.”

“NLC also fails to justify a stay pending judicial review because it has not shown that local governments are likely to suffer irreparable harm absent a stay of the Order, and ‘simply showing some “possibility of irreparable injury” fails to satisfy the second factor’ of the test for granting a stay pending judicial review,” the order said.

The bureau also said a stay would harm consumers and wireless carriers, adding that the public interest mandates that the order promptly take effect.

The small cell declaratory ruling and third report and order was adopted in September (TR Daily, Sept. 26).

The item bars states and localities from adopting rules that prohibit the deployment of wireless infrastructure, imposes limits on the fees that municipalities can charge for reviewing small cell deployments, sets shot clocks for acting on small cell applications, and provides guidance on when non-fee requirements such as aesthetic and undergrounding requirements may amount to an effective prohibition on service.

Six petitions for review have been consolidated in the U.S. Court of Appeals for the Tenth Circuit (Denver) (TR Daily, Nov. 2), but 20 Western localities that have challenged the small cell order have asked the court to transfer the cases to the Ninth Circuit (San Francisco) (TR Daily, Nov. 30). Petitions for review also have been filed in the D.C. Circuit and the Fourth Circuit (Richmond). In all, more than two dozen localities and municipal groups have filed petitions challenging the item, as have several wireless carriers.— Paul Kirby, [email protected]

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