Cities Seek Stay of FCC Small-Cells Order; Agency Asks Court to Reject Transfer

Cities sought court stay of the FCC September wireless infrastructure order, and the commission and wireless carriers opposed San Jose’s motion to transfer appeal of the order to the 9th U.S. Circuit Court of Appeals. “Action is urgently required on this Motion, as the Order will be effective in part on January 14, 2019,” San Jose and other cities said Monday (in Pacer). “The Order dramatically changes the status quo that the Commission concedes works well in many places,” violates the Communications Act and “raises significant constitutional issues,” cities said. “A stay will allow deployment to proceed while avoiding significant delays and irreversible harms that would result from nationwide regulatory whiplash as the Order takes effect in stages and potentially changes after judicial review.” A judicial lottery selected the 10th Circuit for industry and local-government challenges, but San Jose sought transfer to the 9th (see 1811300034). “San Jose misreads federal law as requiring transfer to the Ninth Circuit after the Judicial Panel randomly assigned all six qualifying petitions, filed in four different circuits, to this Circuit,” the FCC said in opposition posted Tuesday. The agency disagreed with cities’ argument courts should treat an August infrastructure order -- under appeal in the 9th -- as the first part of the same order. They "are separate standalone orders that were adopted by separate votes on separate documents at separate times based on differing records (with over 700 additional record submissions for the September Order), and the two orders each address separate and discrete subjects,” the FCC said. They are different, CTIA agreed (in Pacer). Cities’ “suggestion that this Court is somehow ill-suited to resolve the relevant legal issues or is not as well situated to consider this case as the Ninth Circuit, is legally unsupported and a transparent attempt at forum shopping. Moreover, because serious jurisdictional questions cloud the petition pending in the Ninth Circuit for review of the August Order, transfer of this case to that court would be particularly inappropriate.” Transfer got support (in Pacer) of Seattle and other municipalities that challenged the FCC order separately from the San Jose group.