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February 7, 2019 by Tom Cohen

A Great Deal is Riding on Court Review of FCC Decisions

 

Two events this past week highlighted how much is at stake as courts review FCC decisions adopted during Chairman Pai’s tenure.

Lifeline services affirmed

First, the FCC lost a major decision when the federal Court of Appeals (DC Circuit) unanimously overturned an FCC Lifeline order that was very unfavorable for lifeline resellers, as well as Tribal lifeline recipients. The court found the FCC had not provided a reasoned explanation for its change of policy supported by sufficient evidence.

Net neutrality back in the news

Second, during a hearing on the Restoring Internet Freedom Order (RIF Order) – a decision that fixed and mobile broadband providers supported – another panel of judges on the DC Circuit questioned the FCC about whether the decision was properly reasoned and supported with hard evidence.

UPHOLD: If the court upholds the RIF Order, it will affirm that the broadband providers are not subject to common carrier regulation when offering broadband Internet access service, and it will limit state actions to regulate this service. It also will give broadband providers a leg up should the US Congress finally make a concerted effort to enact open Internet legislation.

REVERSE: On the other hand, if the court reverses the FCC’s order, there will be increased uncertainty as the FCC either seeks review by the US Supreme Court, which may not take the case, or decides to initiate a new proceeding. In addition, while the 2015 Open Internet rules do not automatically take effect if the court reverses the RIF Order, it will embolden states to pass their own laws that are like the 2015 rules, and broadband providers will not have an advantage if Congress should seek to legislate.

Small cell deployment rules under review later this year

And the RIF Order is not the only FCC proceeding now in the courts. The Small Wireless Facility decision adopted this past September will be reviewed by the federal Court of Appeals (9th Circuit) later this year. If this decision, which established requirements to speed local government siting decisions and reduce the fees they can impose on small cell deployments, is upheld, it will be a major victory for the FCC and mobile broadband providers. If it is not upheld, siting negotiations between local governments and mobile providers are bound to be more difficult, delaying small cell deployments.

A similar dynamic is at work for the Pole Attachment order the FCC adopted last summer. By establishing a “One Touch Make-Ready” process and other measures to facilitate pole attachments, this FCC action was a “win” for broadband providers. However, pole owners (the electric utilities) fought the order and have sought court review. Courts will hear both petitions for review later this year, and decisions may be issued by the end of the year or early next year.

Wait and see

So, what the FCC has “done” is still in play. We will now wait to see if the courts bow to the FCC’s expertise or whether they demand more reasoned decisions.

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