TR Daily Tenth Circuit Declines to Stay Small Cell Order, Transfers Cases
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Thursday, January 10, 2019

Tenth Circuit Declines to Stay Small Cell Order, Transfers Cases

Two judges on the U.S. Court of Appeals for the Tenth Circuit (Denver) today denied a petition by localities to stay, pending judicial review, the FCC’s small cell order, which takes effect on Monday. Meanwhile, a Tenth Circuit three-judge panel granted the request of localities to transfer to the Ninth Circuit (San Francisco) various petitions for review filed with the Tenth Circuit.

“After reviewing all of the parties’ submissions, we conclude petitioners have failed to meet their burden of showing irreparable harm if a stay is not granted. Accordingly, in the exercise of our discretion, we deny petitioners’ motion for stay,” Circuit Judges Carolyn B. McHugh and Nancy L. Moritz said in a brief order.

The order did not address the other three stay factors, including another that the Supreme Court has said is critical — whether the applicant has shown that it is likely to succeed on the merits.

The small cell declaratory ruling and third report and order that the FCC adopted in September in WT docket 17-79 and WC docket 17-84 would bar states and localities from adopting rules that prohibit the deployment of wireless infrastructure, impose limits on the fees that municipalities can charge for reviewing small cell deployments, and set shot clocks for acting on small cell applications (TR Daily, Sept. 26, 2018).

The FCC last month denied a request for stay filed by the National League of Cities (NLC) and a group of local governments and associations, saying that none of their arguments regarding conflicts with the Communications Act, violations of the Administrative Procedure Act, and violations of local governments’ rights under the Fifth and Tenth amendments to the U.S. Constitution was likely to succeed on the merits (TR Daily, Dec. 10, 2018).

In their motion filed with the Tenth Circuit in cases 18-9568, 18-9571, and 18-9572, the municipal petitioners, which are challenging the small cell order, said, “Action is urgently required on this Motion, as the Order will be effective in part on January 14, 2019” (TR Daily, Dec. 18, 2018).

In a filing with the court, the FCC said the petitioners hadn’t shown that they were likely to succeed on the merits (TR Daily, Jan. 2). The Commission said that the order was reasonable in its interpretation of the statute, that it didn’t intrude on the Fifth or Tenth Amendment rights of localities, and that the new shot clocks were reasonable.

In another filing, CTIA, the Wireless Infrastructure Association, the Competitive Carriers Association, Sprint Corp., Verizon Communications, Inc., and Puerto Rico Telephone Company, Inc., also asked the court to reject the stay request. Sprint, Verizon, and Puerto Rico Telephone Company are challenging the order in court. While carriers support the provisions of the order that the localities object to, they argue the FCC should have included a “deemed-granted” remedy when localities miss deadlines for acting on applications.

“Movants have not met their burden of demonstrating that the extraordinary relief of a stay is warranted, as the Federal Communications Commission explained in denying their administrative stay request,” the entities said. “Movants’ arguments fail to demonstrate irreparable harm or likelihood of success on the merits. The balance of equities and the public interest also weigh heavily against a stay.”

The FCC also filed an opposition in the Eighth Circuit (St. Louis) to a motion by the city of North Little Rock, Ark., and the Missouri Association of Municipal Utilities for a stay of the small cell order pending judicial review of their challenge. In its filing in case 18-3678, the FCC made points similar to those it asserted in the Tenth Circuit. A three-judge panel of the Eighth Circuit on Jan. 3 granted the FCC’s motion to strike the stay request and granted the FCC’s motion to transfer the case to the Tenth Circuit, where a number of other cases have been consolidated.

In a separate order today, the three-judge panel of the Tenth Circuit said in an order granting a motion by localities to transfer the petitions for review to the Ninth Circuit, “After careful consideration, we conclude that the FCC’s August Order and its September Order are the ‘same order’ for purposes of § 2112(a). Accordingly, the motion to transfer is granted and these matters are transferred to the United States Court of Appeals for the Ninth Circuit.” The order noted that it does not cover four petitions for review pending in the D.C. Circuit.

The order was issued by Circuit Judges Mary Beck Briscoe, Robert E. Bacharach, and Gregory A. Phillips.

In their motion to transfer (TR Daily, Nov. 20, 2018), the localities noted that the city of Portland, Ore., was the first entity to submit a petition for review (TR Daily, Oct. 2, 2018) to overturn the FCC’s August declaratory ruling in its one-touch make-ready (OTMR) pole attachment proceeding that said that the FCC would preempt “on a case-by-case basis, state and local laws that inhibit the rebuilding or restoration of broadband infrastructure after a disaster” (TR Daily, Aug. 3, 2018). Portland’s petition was filed in the Ninth Circuit.

“Here, the August Order and September Order can be treated as the same order. 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,” the localities’ filing said.

The FCC and the Department of Justice opposed the transfer motion, as did the same industry entities that opposed the stay request. —Paul Kirby, [email protected]

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