9th Circuit Judges Probe Petitioner Standing in Greenlining Case
SEATTLE -- 9th U.S. Circuit Court of Appeals judges questioned whether groups petitioning to repeal parts of a 2017 declaratory ruling on whether and how to notify customers when carriers retire copper networks had demonstrated sufficient injury to merit standing, during oral argument Tuesday in Greenlining v. FCC (17-73283). The FCC and the DOJ asked the court in November to dismiss the petition for lack of jurisdiction or on its merits. Judge Margaret McKeown said a court of appeals "shouldn't have to hunt and peck" for clear evidence of standing and jurisdiction. "This is a threshold issue in every case."
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Judge Jay Bybee asked why consumers didn't show standing rather than as members of the plaintiff groups. He said standing shouldn't have been terribly hard to show.
Public Knowledge Senior Vice President Harold Feld told the court the precedence for deciding cases on the merits is very strong and asked it to consider the arguments. The Utility Reform Network has strong standing, and a Greenlining Institute member could show standing, and he asked petitioners "be allowed to fill in those necessary blanks" if the standing didn't appear evident. Some petitioning groups aren't themselves subscribers of legacy copper service, Feld said. As customers are moved from legacy copper networks, he said, they can be injured if they don't have the time to find alternatives. The FCC had required carriers give customers 180 days' notice of plans to retire a copper network, and a 2017 rulemaking reversed it. Feld argued that in trying to do away with the functional test in matters of discontinuing a telecom service, the FCC failed to clearly define the word "service" and used different meanings within a document.
Bybee tried to steer the petitioner away from assigning bad intentions to the agency and said he wouldn't be surprised if the FCC under one administration disagreed with the opinions of another. "Our court is a collegial body," he said: "We don't accuse each other" of wrongdoing. Bybee asked what the FCC did when it wanted to update rules on service discontinuance. Disagreement itself doesn't make a decision arbitrary and capricious, he said.
Feld said telecom customers should be able to rely on reasonable stability in a rule. He said the FCC in 2017 said incumbents would never fail to replace their networks, but they demonstrated as early as 1999 that there is sometimes economic incentive to abandon customers.
McKeown asked about the FCC's position the 2015 rules didn't play out as hoped and how it compiled a new record. Feld said questions in a 2017 notice were leading, such as asking carriers to "please show us this is incredibly burdensome," and he said, "they did."
Representing the agency, Sarah Citrin said it continues to believe petitioners didn't show standing. "They haven't made showing of concrete injury," she said, nor do they show their service will be discontinued anytime soon. She added that a preference for copper wireline service over another isn't an injury.
Citrin said the FCC shouldn't impose a functional test on what consumers have come to expect from their carriers including compatibility with third-party devices, deciding in 2017 such requirements were a mistake. "We didn't say it was implausible, but we said it should be how a provider describes its service," she said, saying a consumer isn't allowed to cite a privilege not described in their tariff. She said users would have been left guessing, and carriers would have, out of fear, maintained their legacy networks in perpetuity. She said the onus on ensuring compatibility should belong to device manufacturers, not carriers. She told the judges the FCC didn't find de facto service discontinuance notifications provide any reasonable customer benefit because there's no way to enforce them prospectively. She said the earlier proscribed form of notifying customers about when a carrier would retire its copper network wasn't relevant compared with the date the carrier was to appear at their household to switch them to fiber.
For USTelecom, Collin White said the new FCC simply reached a different conclusion on how best to serve consumers when a carrier discontinues service by retiring copper and replacing it with fiber. "Consumers are voluntarily walking away from copper," White said, noting increasing wireless-only households. McKeown said statistics don't address the question of customer notification, nor does the comment that every dollar spent on notification is a dollar that's not spent on fiber buildouts.
Challengers in the case last week liked their odds (see 1908230003). After oral argument, FCC, Greenlining and USTelecom representatives declined to comment.
"We are confident in our case," Public Knowledge Legal Director John Bergmayer emailed Tuesday. PK expects the 9th Circuit won't "look kindly on the many shortcuts the Commission took and the mistakes it made on the way toward unwise deregulation," he added.