Following First Challenge to LFA Order, More Expected Soon

With one appeal filed of the FCC cable local franchise authority order, multiple other plaintiffs are expected to appeal and intervene by the Oct. 28 deadline, 60 days after the LFA order was in the Federal Register. Coalitions of local communities and states are seen as possible plaintiffs.

Challenges to the August rules were expected (see 1908010011). Localities lawyer Tillman Lay of Spiegel and McDiarmid, representing plaintiff Eugene, Oregon, in the petition for review (docket 19-72219, in Pacer), said he's confident numerous other local governments will do similarly. Localities lawyer Gerard Lederer of Best Best said two or three community coalitions are likely to file as plaintiffs, because it's generally too expensive for a single community to do so. He said larger single communities may file as intervenors. He said states could be plaintiffs, though it's not clear.

Multiple localities lawyers declined to discuss timing of when other appeals might be filed. The FCC and NATOA didn't comment Thursday.

The Eugene petition filed Aug. 30 with the 9th U.S. Circuit Court of Appeals closes the lottery window on which appellate court would handle the case, so even if other localities file in other circuit courts, those cases would be transferred to the 9th Circuit, localities lawyers told us. Motions to intervene can be filed within 30 days after any appeal, meaning parties potentially could intervene up until late November, one said.

Eugene says the order is "arbitrary, capricious" and an abuse of Administrative Procedure Act discretion, and a violation of the Constitution and the Communications Act. The petitioner brief is due Nov. 18, with the FCC's respondent brief due Dec. 18.

The August order focused largely on LFA issues remanded from the 6th Circuit's 2017 decision on an appeal of FCC video franchise rules (see 1707120031). So the agency or an industry petitioner might ask the 9th Circuit to transfer the case back to the 6th on the theory that it arises out of that original docket and order, a localities lawyer said.

Eugene was a named party in the FCC order. The agency said some states and localities enacted fees or imposed other requirements on cable operators' non-cable services after a 2016 Oregon Supreme Court decision on litigation between Eugene and Comcast that upheld the city's telecom license fee on broadband services over a franchised cable system with mixed-use facilities. The order curtailed state or local obligations on franchised cable operators. Alliance for Community Media President Mike Wassenaar said expected appeals likely will often be about different though overlapping issues.

Many communities remain in wait-and-see mode on the order's effects, Wassenaar said. The regulation put the impetus on cable systems to act and is vague on some issues, he said.