9th Circuit Upholds FCC China Unicom Revocation in Split Decision
The 9th U.S. Circuit Appeals Court on Tuesday rejected a petition for review that China Unicom (Americas) brought seeking to overturn the FCC’s 2022 decision revoking the company’s Section 214 authority to operate in the U.S. (see 2201270030). The decision…
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was 2-1 with Judge Daniel Collins writing a majority opinion supported by Judge Kenneth Lee. Judge Carlos Bea dissented. The majority held that the commission “correctly interpreted its authority under the Communications Act” and that the “grant of authority to ‘issue’ certificates to telecommunications carriers must be understood as carrying with it an implied incidental authority to revoke such certificates.” The court reviewed the FCC’s authority under the U.S. Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondi, which overturned the Chevron doctrine, and found that the revocation was within the FCC’s discretion to act (see 2406280043). “There was no indication in the statutory text or structure that Congress denied the FCC any relevant authority to revoke a carrier’s [Section] 214 certificate,” the majority held. “The Lord giveth and the Lord taketh away,” Bea wrote in his dissent: “Today, the majority declares that” the FCC “may act as the Lord in canceling telecommunications certificates. … I disagree. Unlike the majority, I find myself constrained by the text of the statute and a regard to separation of powers principles of our Constitution to resolve this case otherwise.” All three judges were Republican appointees -- President George W. Bush appointed Bea and President Donald Trump appointed Lee and Collins.