Choice of 10th Circuit to Hear Small-Cell Case Seen as Good News for FCC
A consolidated appeal of the FCC’s September wireless infrastructure order on state and local barriers to siting small cells will be heard by the 10th U.S. Circuit Court of Appeals, not the 9th Circuit, as sought by local governments, and that could be positive for the FCC, court observers said. The U.S. Judicial Panel on Multidistrict Litigation randomly picked the 10th Circuit Friday (see 1811020061). AT&T, Sprint and the Puerto Rico Telephone Company also appealed the order, forcing a lottery. AT&T’s appeal in the U.S. Court of Appeals for the D.C. Circuit was left out of the lottery.
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The 9th Circuit generally is considered the most liberal and activist, while the 10th is split evenly between Democratic and Republican judges and considered more middle of the road, lawyers said. The 10th Circuit may not have been industry’s first choice, “but it isn't the 9th Circuit,” said a longtime appellate lawyer. Lawyers noted that the 10th Circuit doesn't hear many big, administrative law cases and has relatively little experience handling them, which could favor the government.
In its most recent big case regarding the FCC, the 10th Circuit in 2014 ruled unanimously that petitioners were “unpersuasive” in their “host of challenges” to the regulator’s 2011 USF-intercarrier compensation order (see 1405270054). Earlier this year, the FCC scored another win when the 10th Circuit denied a Blanca Telephone petition for a writ of mandamus seeking judicial intervention against orders requiring the company to repay $6.75 million in USF support (see 1801020038).
"Our preference was ... the 9th Circuit," said local government attorney Ken Fellman, representing Seattle and two other Washington state localities that sued in that court separately from the San Jose group. Fellman’s practice is in Denver, where the 10th Circuit is located. "But we feel like we have really strong arguments and a really good case, and we're looking forward to making those arguments in the 10th Circuit."
The 10th Circuit is generally "less political and less freewheeling on declaring opinions on regulatory policy than the 9th," said communications-provider lawyer Wilkinson Barker's Ray Gifford, former Colorado Public Utilities Commission chairman. Almost any circuit would be less political than the 9th Circuit, he added: “I would expect the 10th circuit to color within the lines on this appeal, and given the general pre-emptive thrust of the Telecommunications Act, I would think on the margin this would be beneficial to the carriers. You have a much smaller chance of a rogue panel going wacky.”
It’s no surprise local government opponents of the order chose the 9th Circuit, said Randolph May, president of the Free State Foundation. “Based on the current composition of the court, [it's] reflexively anti-Trump administration,” he said. “The questions raised in the appeal aren’t ‘political’ in any meaningful sense, but based on history, the 9th Circuit judges seem to see politics when they shouldn’t.”
The 9th Circuit is neither rogue nor more political, said municipal telecom lawyer Tillman Lay of Spiegel & McDiarmid. “Courts decide the lines, not practitioners.”
Local governments “feel pretty good about the appeal and our prospects regardless of" location, said Best Best's Joseph Van Eaton, representing San Jose and other Western cities that sued in the 9th Circuit. “It made sense to be in the 9th Circuit” because Portland was already appealing the August ban on wireless moratoriums there (see 1810030018) “and we had more clients there than elsewhere,” he said: The 9th Circuit and other courts in that jurisdiction “had also issued a significant number of decisions addressing the issues that are at the heart of the FCC order.” AT&T and Sprint didn’t comment.
The Wireless Infrastructure Association “looks forward to this case being heard on the merits,” said President Jonathan Adelstein. “The FCC has a strong and clear legal basis for the order and has done a great job in supporting its position. We hope for a rapid resolution so that American companies have certainty to invest in the deployment of next-generation broadband networks.”