Challenge to FCC’s 5G Network Order Moves to Ninth Circuit (2)

A challenge by dozens of cities and counties to a Federal Communications Commission order aimed at speeding up the deployment of 5G network infrastructure is back in the U.S. Court of Appeals for the Ninth Circuit.

The U.S. Court of Appeals for the Tenth Circuit Jan. 10 granted a bid by San Jose, Calif. and other local governments to transfer the case to where they had originally sued. The court also denied their bid to stay the FCC’s order pending the litigation. The order is set to take effect in part on Jan. 14.

The transfer is “huge news,” Robert (Tripp) May, counsel for the League of California Cities and several other local government petitioners, told Bloomberg Law Jan. 11.

“Between the two, I would take the transfer over the stay seven days a week,” May, a telecom partner at Telecom Law Firm PC in San Diego, said. Petitioners now can ask the Ninth Circuit to halt the order, even after it takes effect, May said.

San Jose and 22 other cities and counties sued to overturn an order restricting how much local governments can charge wireless carriers to process applications for small cell equipment that’s critical to 5G. The order also imposes deadlines for cities to grant or deny the applications.

More local governments, as well as Sprint Corp., AT&T Inc., and Verizon Communications Inc., later filed separate petitions against the order in other federal circuit courts. The United States Judicial Panel on Multidistrict Litigation consolidated the petitions and chose the Tenth Circuit to hear the case.

The petitioners argued that the Ninth Circuit should hear the case because the FCC order ignores a Ninth Circuit interpretation of the Telecommunications Act of 1996. The law says governments can’t stop entities from providing telecom services. The Ninth Circuit has held that an entity must show “actual or effective prohibition” to allege a violation.

The FCC’s order essentially says that if a city makes it harder for a carrier to provide telecom services, that amounts to a prohibition, May said.

The FCC and the wireless carriers had opposed the cities’ bid to transfer the case. Spokespeople for the FCC, Sprint, and Verizon declined to comment. AT&T didn’t immediately respond to a Bloomberg Law request for comment.

The main case is City of San Jose v. FCC, 10th Cir., No. 18-9568, 1/10/19.