Federal Communications Commission (FCC)

The FCC’s partial reopening of the equipment authorization system, announced Friday (see 1901180040), will provide only limited relief, Commissioner Jessica Rosenworcel again warned Tuesday. The federal shutdown could slow FCC work on 5G in general, particularly on clearing mid-band spectrum, she said. Rosenworcel spoke at an Internet Innovation Alliance session on a potential incentive auction for the 2.5 GHz educational broadband service band, with a goal of raising money to close the “homework gap.”

Votes planned for a Jan. 30 FCC meeting are at risk as the partial government shutdown drags on with no end in sight, agency observers said. Even if lawmakers jump-start negotiations and reopen FCC offices before Jan. 30, time is slipping away for deliberations and votes by officials who would be scrambling to play catch-up and address backlogs. Another complication is the looming addition of Commissioner Geoffrey Starks, who hasn't been sworn in despite being confirmed (see 901170036).

Incompas urged a court to reject an FCC motion to delay Feb. 1 oral argument on its net neutrality reversal due to the partial government shutdown (see 1901150011). Denial would expressly authorize the FCC to proceed with the case despite Anti-Deficiency Act (ADA) restrictions absent regular funding, and be in line with U.S. Court of Appeals for the D.C. Circuit precedent denying such government stay requests during shutdowns, said the group's opposition Wednesday in Mozilla v. FCC, No. 18-1051. Incompas, one of many petitioners challenging the commission order, cited the need for a "timely decision" to protect consumers and edge providers from the risk of "substantial harm" due to possible ISP network interference, adding that delay would disrupt petitioner preparations. The court "may likely deny this motion," emailed Morgan Lewis communications attorney Andrew Lipman, citing opposition and precedent: "My sense is the FCC recognizes this distinct possibility in the way they drafted the Motion. I believe they will be ready to go on Feb 1." It seems the FCC expects the motion to be denied "but that the denial acts as authorization to continue preparing for the argument ... because the court requires it," emailed Daniel Lyons, Boston College associate law professor. Citing "aggressive" cost cutting by federal courts and public defender offices, the Administrative Office of the U.S. Courts confirmed Wednesday its intent to extend judiciary operations at least through Jan. 25 "by using court fee balances and other 'no year' funds." But "at some point in the near future, existing funds will run out if new appropriated funds do not become available." After that, only "mission-critical work" would be allowed, including case resolution, with each court determining staffing needs.

T-Mobile and Sprint executives are taking the prolonged partial federal shutdown in stride, though there's an effective pause in reviewing the deal at the FCC and DOJ, said lawyers familiar with their strategy. Analysts say as long as regulators go back to work in a somewhat timely manner, the shutdown shouldn’t be a major threat, although it will inevitably delay resolution. Some aren't convinced government will OK the deal (see 1901140017), while others expect approval. And T-Mobile caught some heat for executives staying frequently at a Trump hotel down Pennsylvania Avenue from the White House starting shortly after the deal was announced.

The ongoing partial government shutdown is affecting Capitol Hill's ability to conduct oversight of the FCC, a problem that will grow more acute in coming weeks if it continues, lawmakers and lobbyists said in interviews. Most FCC activities have been curtailed during the shuttering. Commission lawyers asked the U.S. Court of Appeals for the D.C. Circuit Tuesday to postpone a Feb. 1 oral argument on Mozilla v. FCC, which challenges rescission of the 2015 net neutrality rules (see 1901150011).

Benton Foundation names Christopher Ali, University of Virginia, faculty research fellow, and moves research consultant Ryland Sherman to research associate ... Lorrie Faith Cranor, ex-FTC, becomes director-Carnegie Mellon University CyLab security and privacy institute ... Nexstar promotes Terri Lynn Bush to associate counsel-senior vice president, human resources, and hires Charles Pautsch, ex-Pautsch Spognardi, as associate counsel-vice president, labor and employment relations, both new posts.

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.

The halt in regular FCC operations isn't having a large impact on communications law firms and most clients yet, said attorneys who continue to draft pleadings, provide advice, handle litigation and do other work. But if the shuttering lasts an extended period, it will cause delays and backlogs that increasingly have negative fallout on matters large and small, rippling through industry, they said this week.

Extending its expectation of keeping the federal judiciary open through Friday, the Administrative Office of the U.S. Courts said it's "working toward the goal of sustaining paid operations through Jan. 18." If existing funding runs out, the judiciary will "operate under the terms of the Anti-Deficiency Act, which allows 'essential work' to continue." The "mission critical work includes activities to support the exercise of the courts’ constitutional powers under Article III, specifically the resolution of cases and related services," the office said Monday, with each court determining the staff needed. It added that in response to DOJ requests, "some federal courts have issued orders suspending, postponing, or holding in abeyance civil cases in which the government is a party for a limited period, subject to further consideration, or until appropriated funds become available." The department got a stay Monday (see here, in Pacer) from the U.S. District Court in Washington on a Friday deadline for filing a joint status report in docket 17-cv-02409 on litigation over Protect Democracy Project's Freedom of Information Act request for White House communications about AT&T's Time Warner buy (see 1803060004). That status report now is due after DOJ funding is restored. Oral arguments will go on as scheduled this month in the U.S. Court of Appeals for the D.C. Circuit, it says. That includes a GLH Communications v. FCC wireless case Wednesday, which the commission says is auction related. The D.C. Circuit is scheduled to hear oral argument Feb. 1 on challenges to the FCC's net neutrality rollback in Mozilla v. FCC, No. 18-1051.

T-Mobile/Sprint opponents in New York support strong state conditions on the $26 billion deal, their representatives told us Friday, the due date for the second round of comments in case 18-C-0396 at the New York Public Service Commission. While not ready to support the deal, the Public Utility Law Project has moved from a position “tending toward telling the commission to deny,” said PULP Executive Director Richard Berkley. In the California Public Utilities Commission review, intervenor testimony is due Monday, with hearings planned this month and next.