FCC Urges 9th Circuit to Consolidate, Put on Hold Challenges to Small-Cell Order
The FCC asked a court to consolidate and hold in abeyance challenges to a September wireless infrastructure ruling-order. The 9th U.S. Circuit Court of Appeals should consolidate 13 local and industry petitions for review, with proceedings abated while the agency…
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considers an administrative petition from some localities to reconsider the item to remove local barriers to small-cell deployment, said the commission's motion Monday in Sprint v. FCC, No. 19-70123 and other cases. Some anticipated this (see 1901250010). The reconsideration petition "raises substantially the same issues as those raised in the nine petitions for review filed" by localities, the FCC said. "Like those petitioners, the petition for reconsideration seeks review of the Order’s determinations regarding state and local fees and charges ... timelines for state and local authorizations... and the effective prohibition standard generally." The agency called it "common practice" to hold such cases in abeyance, given potential for regulatory updates. It said industry parties backed both requests, while local interests supported consolidation but not holding the cases in abeyance, with some reserving the right to seek to further consolidate them with a Portland v. FCC (No. 18-72689) challenge to an August ruling barring local moratoriums on deployment. "Industry petitioners and intervenors (all of whom love the FCC’s order) support the FCC’s motion completely," emailed Spiegel & McDiarmid attorney Tim Lay, who represents localities. "Municipal & municipal utility petitioners and intervenors, including our clients (all of whom hate the order), support consolidation of all of the cases ... but oppose the FCC’s request to place the appeals on indefinite hold ... because then the FCC could sit on the reconsideration petition, thereby blocking local governments’ ability to obtain timely court relief." He said by phone Tuesday he suspects localities will oppose the abeyance requests and expects a motion to be filed to consolidate all the cases. Sprint told us it would continue to respond directly to the court. Little Rock, the Missouri Association of Municipal Authorities and the FCC agreed (in Pacer) to dismiss their case (No. 19-70148). Portland and local intervenors Monday opposed (in Pacer) a previous FCC motion to hold in abeyance their challenge to the August ruling pending resolution of three petitions to reconsider that item (see 1902150039).