FCC 3-2 Won't Stay Ligado Decision; Simington Concurs
The FCC Tuesday night denied a petition seeking a stay of its order granting Ligado's L-band plan amid a review of NTIA's petition for reconsideration, as expected (see 2006120033). The vote was 3-2, with Commissioners Jessica Rosenworcel and Geoffrey Starks dissenting. The decision drew fresh ire from Ligado opponents, including outgoing Senate Armed Services Committee Chairman Jim Inhofe, R-Okla. Commissioners unanimously approved the Ligado plan in April (see 2004200039).
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"The extraordinary equitable relief of a stay is not warranted," in part because "NTIA itself argues that the harmful interference issue it raises will not likely arise until after Ligado deploys its network," the outgoing FCC Republican majority said in its order denying the stay. "Such deployment will not occur for some time and not before" the FCC will be able to "reach a determination as to whether NTIA’s claims justify barring this deployment or otherwise modifying its underlying order." NTIA didn’t comment Wednesday.
NTIA "is unlikely to succeed on the merits," because its recon petition claim "is based primarily on an argument that the Order departed from the Commission’s established approach to evaluating harmful interference concerns, a claim belied by the words of the Order itself," the commission said. NTIA "is seeking to support its request for a stay based on providing new data or additional testing that NTIA had not previously provided in the record of this proceeding," but "this argument is unlikely to succeed on the merits based on its untimeliness."
Commissioner Nathan Simington backed the stay denial but cautioned it "does not reflect an evaluation of the merits of" the recon petition. "I do not share my colleague’s determination that Ligado will certainly succeed on the merits with respect to NTIA’s" petition, he concurred. "Such certainty is premature because interference criteria relating to device performance have not been conclusively addressed. As there is an opportunity for further testing, including performance-based testing, there remains the possibility of a showing that will greatly bolster" the case of Ligado opponents.
Rosenworcel and Starks didn’t explain their dissents. Their offices didn't comment.
A Ligado spokesperson noted that Rosenworcel strongly defended the FCC’s Ligado order during a June Senate Commerce Committee hearing but also supported allowing a stay (see 2006240069). Rosenworcel’s testimony shows she “agrees with the substance” of the FCC’s decision but was willing to entertain a stay as part of a commitment to top Commerce Democrat Maria Cantwell of Washington. Cantwell, who’s likely to become Commerce chair, will be “influential” in Senate consideration of President Joe Biden’s picks for Democratic FCC seats, said a lobbyist who follows the Ligado proceeding.
Inhofe pledged to "keep working with our stakeholders to file additional stays." He complained the FCC announced its decision "at the last minute" before Ajit Pai's Wednesday departure as FCC chairman. "It smacks of dirty dealing, and I’m once again disgusted with the process," Inhofe tweeted. "This isn’t over and I applaud" Rosenworcel and Starks for being "on the right side." Inhofe has been a leading Ligado opponent, at one point placing a hold on now-former Commissioner Mike O’Rielly’s reconfirmation over the issue (see 2007310001).