9th Circuit Hears Greenlining v. FCC Tuesday -- Challengers Like Odds
Consumer groups are heading to the 9th U.S. Circuit Court of Appeals Tuesday in Seattle to challenge a 2017 FCC order that relaxed regulations on how telcos retire copper phone lines and how they notify customers (see 1906170005). Appellants said in recent interviews they like their odds, while the government and its allies in the case weren't talking. Last September, The Greenlining Institute, Public Knowledge, The Utility Reform Network and National Association of State Utility Consumer Advocates petitioned the 9th Circuit to challenge the order, claiming the agency hid intentions during a comment period and predetermined the outcome in striking down the functional test standard in service discontinuances (see 1809270036). The California Public Utilities Commission later added its support to the petition (see 1810040059).
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Hearing argument are Judges Margaret McKeown and Jay Bybee, both of the court, and Missouri Western U.S. District Judge Fernando Gaitan, in Greenlining v. FCC (in Pacer, docket 17-72383). Public Knowledge Senior Vice President Harold Feld will argue on behalf of the consumer groups. FCC attorney Sarah Citrin is to represent the agency. Kellogg Hansen's Collin White is to speak for USTelecom. The FCC and DOJ argue the regulations the FCC eliminated were "unlawful and unjustifiably slowed the evolution of the nation's communications networks."
The petitioners' biggest argument Tuesday will be that "we think the FCC's effort to eliminate the functional test based on statutory terms is clearly contrary to the statute," Feld said. That's because the FCC claims the same word, "service," has different meanings "literally within the same paragraph." Last month, Feld submitted recent Supreme Court decisions in four cases to support its petition in Greenlining. "Statements by the two majority commissioners demonstrate the FCC had a preconceived intent," he wrote. In September, Feld wrote, it's "clear that Chairman [Ajit] Pai and Commissioner [Mike] O'Rielly began this proceeding determined to make their minority dissents from the 2014 and 2015 commission orders the majority opinion now that they controlled the commission."
Feld expects the court to look at issues including the functional test, customer notice obligations and de facto copper retirement. "From what we know of the panel, from every description of the judges, they are a hot bench," he said. From his research, "they're smart, polite and ask a lot of questions." To him, "the big question here is going to be how much leeway does the court give" in allowing the FCC "to completely reverse a decision because of an election" -- that of Donald Trump as president -- rather than follow a procedural rule.
If the petitioners win, the court would send the matter back to the FCC, Feld said, and generally the FCC would repeal the order, but in this case, "we didn't appeal the entire rule." If the petitioners are successful, the items in question would be reversed and old rules reinstated, Feld said, and the FCC would then either agree to use the previous rules or start a new proceeding. Later rules that stemmed from the 2017 order could also be affected if the court repeals the rule in question, Feld said.