9th Circuit Pauses FCC Infrastructure Cases Pending Special Master Conference
Challenges to FCC wireless and wireline infrastructure orders will be paused, pending review by a special master, the 9th U.S. Circuit Court of Appeals ruled Wednesday. Challenges by Sprint and 11 others to a September order restricting local fees and…
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reviews of small-cell siting applications were consolidated under Sprint v. FCC, No. 19-70123, said an order (in Pacer) of Judges Richard Tallman and Mary Murguia. The September order case will be assigned to the same merits panel that reviews Portland and American Electric Power Service challenges to an August ruling/order barring local infrastructure moratoriums and revising pole-attachment processes. The latter two were also consolidated under Portland v. FCC, No. 18-72689, said another order (in Pacer) of the two judges. The court referred all the cases to its special master, Appellate Commissioner Peter Shaw, for a case management conference he will schedule. “The special master shall consider any issues he deems appropriate to manage the petitions effectively, including but not limited to the development of a briefing plan for the above-listed twelve petitions,” said the first order. The judges granted in part the FCC’s motion, opposed by localities (see 1903070059), to hold the Sprint case in abeyance. Noting the FCC's request to continue a stay in the Portland case, the second order stayed the now-consolidated case pending the conference. “Proceedings in these consolidated petitions other than the case management conference are stayed pending [that] conference,” said both orders: "Briefing is suspended pending further order of the court following the ... conference." The decisions mean “we’re in abeyance for what I hope will be a short period of time,” emailed local government attorney Ken Fellman. “Given the number of parties, different case filings and complexity of the issues, we’ve thought that a case management conference would be necessary to delineate the process of getting from here to a decision.” Local governments are pleased because the FCC had "asked for an indefinite abeyance," but the court "simply delayed matters until after the scheduling issues can be considered at a case management conference," said Best Best attorney Joseph Van Eaton. "We are hopeful that the process established by the 9th Circuit will result in expedited resolution of this appeal. At the very least, we suspect the FCC will be asked to explain why it has not decided the pending reconsideration petitions." The agency didn’t comment.