Cities Win Transfer But No Stay of FCC Wireless Infrastructure Order

A federal appeals court denied local governments a stay of the FCC’s September wireless infrastructure order that takes effect Monday (see 1901090033). In a possible setback for the FCC, the 10th U.S. Circuit Court separately in No. 18-9568 agreed with cities it's effectively part two of the agency’s August pole attachments order and should be transferred to the 9th Circuit, which is weighing a Portland, Oregon, lawsuit against the August order. Cities “failed to meet their burden of showing irreparable harm if a stay is not granted,” the 10th Circuit ruled (in Pacer) Thursday. Granting transfer (in Pacer), the Denver court concluded “the FCC’s August Order and its September Order are the ‘same order’ for purposes of § 2112(a).” The 10th Circuit was chosen by court lottery, but cities argued Portland technically was first to challenge if that order was considered part one (see 1811300034). Selection of the 10th Circuit was considered good news for the FCC because the court is split evenly between Democratic and Republican judges and considered more middle of the road, whereas the San Francisco-based 9th is considered the most liberal and activist (see 1811060046). Commissioner Brendan Carr tweeted that the order taking effect “will help every community enjoy the economic opportunity that 5G will enable.” The transfer is good news for local governments because historically the 9th Circuit “has taken a more narrow view of what qualifies as an effective prohibition on broadband deployment,” blogged locality consultant Tellus Venture President Steve Blum. The FCC and an attorney for San Jose and the other cities declined comment. Seeing the transfer order, the D.C. Circuit on Friday dismissed (in Pacer) as moot an FCC motion to transfer a similar case (AT&T v. FCC, No. 18-1294) from that venue to the 10th Circuit. The Washington court asked parties to show cause why it shouldn’t move petitions to the 9th Circuit. In a separate infrastructure case, the National Resources Defense Council urged the D.C. Circuit to reject the FCC’s March wireless order in United Keetoowah Band v. FCC, No. 18-1129 (see 1812050010). The commission “overlooks the additional responsibilities that the National Environmental Policy Act ... imposes on it independent from the Commission’s obligations under the Communications Act” and “the continuing federal role it plays in overseeing the conduct of those it licenses to provide wireless service,” the council replied (in Pacer) Friday.