A federal appeals court denied local governments a stay of the FCC’s September wireless infrastructure order that takes effect Monday (see 1901090033). In a possible setback for the FCC, the 10th U.S. Circuit Court separately in No. 18-9568 agreed with cities it's effectively part two of the agency’s August pole attachments order and should be transferred to the 9th Circuit, which is weighing a Portland, Oregon, lawsuit against the August order. Cities “failed to meet their burden of showing irreparable harm if a stay is not granted,” the 10th Circuit ruled (in Pacer) Thursday. Granting transfer (in Pacer), the Denver court concluded “the FCC’s August Order and its September Order are the ‘same order’ for purposes of § 2112(a).” The 10th Circuit was chosen by court lottery, but cities argued Portland technically was first to challenge if that order was considered part one (see 1811300034). Selection of the 10th Circuit was considered good news for the FCC because the court is split evenly between Democratic and Republican judges and considered more middle of the road, whereas the San Francisco-based 9th is considered the most liberal and activist (see 1811060046). Commissioner Brendan Carr tweeted that the order taking effect “will help every community enjoy the economic opportunity that 5G will enable.” The transfer is good news for local governments because historically the 9th Circuit “has taken a more narrow view of what qualifies as an effective prohibition on broadband deployment,” blogged locality consultant Tellus Venture President Steve Blum. The FCC and an attorney for San Jose and the other cities declined comment. Seeing the transfer order, the D.C. Circuit on Friday dismissed (in Pacer) as moot an FCC motion to transfer a similar case (AT&T v. FCC, No. 18-1294) from that venue to the 10th Circuit. The Washington court asked parties to show cause why it shouldn’t move petitions to the 9th Circuit. In a separate infrastructure case, the National Resources Defense Council urged the D.C. Circuit to reject the FCC’s March wireless order in United Keetoowah Band v. FCC, No. 18-1129 (see 1812050010). The commission “overlooks the additional responsibilities that the National Environmental Policy Act ... imposes on it independent from the Commission’s obligations under the Communications Act” and “the continuing federal role it plays in overseeing the conduct of those it licenses to provide wireless service,” the council replied (in Pacer) Friday.
State net neutrality bills flooded into legislatures as sessions opened this week. Connecticut legislators floated bills in both chambers Wednesday: Rep. Michael Winkler (D) introduced HB-5016 to require ISPs that are state contractors to adopt net neutrality policy, and Sen. Bob Duff (D) sponsored SB-6 to require the Public Utilities Regulatory Authority to apply and enforce net neutrality rules for ISPs. Connecticut’s Joint Energy and Technology Committee will be first to review them. Legislative sessions also opened in several states with prefiled net neutrality bills, including Missouri (HB-391), New Hampshire (HB-132) New York (see 1901070025) and South Carolina (see 1812190005). Lawmakers got to work in Colorado, where Sen. Kerry Donovan (D) is soon expected to introduce a net neutrality bill (see 1812280020).
The Arizona Corporation Commission plans to revisit its ethics code next week under a new chairman who brought scrutiny to last year’s efforts and with an added Democratic commissioner who pledged to end ACC corruption. The membership bodes well for making significant revisions, said Chairman Bob Burns (R) in an interview Tuesday. They “are very promising developments for freeing the commission from undue influence by the regulated utilities,” Public Citizen Government Affairs Lobbyist Craig Holman told us.
Georgia and West Virginia lawmakers appeared poised to move 5G wireless bills as state legislative sessions begin in 2019. Look for bills in those and other states that didn't succeed in passing measures last year, wireless industry officials told us. Local governments opposing state pre-emption see no slowdown ahead on state bills, even though the FCC ruled in September, said NATOA General Counsel Nancy Werner.
Frontier Communications “has been violating at least 35 separate laws and rules” in Minnesota that the Public Utilities Commission “has clear authority to enforce” in its service-quality investigation, the state Commerce Department said Friday in 100-plus-pages in docket 18-122. “The Minnesota legislature has provided a clear set of remedies to curb misconduct of rogue companies, ones who routinely, knowingly disregard the law ... including hefty civil penalties and criminal prosecution.” The investigation unearthed “an extraordinary situation, where customers have suffered with outages of months, or more,” the department said. Many consumers reported the company losing their trouble reports. Record keeping “appears to have become so deficient that, for some critically important data, such as data on duration of outages, the Company’s records cannot be relied upon by Frontier’s executives or the Commission to know if the company is meeting its performance obligations or not,” it said. “It will take significant, multistep actions by the Commission to set Frontier on a path to reach an acceptable level of performance, and any actions ordered by the Commission will need verifiable methods to ensure compliance.” The telco disagrees, though it “recognizes we experience service issues and delays from time-to-time with some of our customers,” a spokesperson said. “We are an ethical company committed to our customers and the Minnesota communities we serve. We take this matter seriously and will respond appropriately." Parties have 30 days to comment, then staff will analyze the record and bring the matter to the commission for consideration, a PUC spokesperson said. Opened last February, the probe (see 1811190030) received more than 1,000 consumer complaints and statements, including about 650 reports about the company's phone service and 325 about internet access, the Commerce Department said. “As with almost all complaints to regulatory agencies, the number of customers who took the time to attend a public hearing, write a public comment, or to report their concerns to a government agency by filing a complaint is likely to be a fraction of the customers with similar experiences.”
T-Mobile/Sprint opponents in New York support strong state conditions on the $26 billion deal, their representatives told us Friday, the due date for the second round of comments in case 18-C-0396 at the New York Public Service Commission. While not ready to support the deal, the Public Utility Law Project has moved from a position “tending toward telling the commission to deny,” said PULP Executive Director Richard Berkley. In the California Public Utilities Commission review, intervenor testimony is due Monday, with hearings planned this month and next.
Arizona and Iowa commissions said they're looking into the multistate CenturyLink outage that disrupted 911, joining other states making inquiries (see 1901020022) and the FCC (see 1812280033). The Arizona Corporation Commission Utilities Division opened a docket (T-01051B-19-0001) Wednesday. "Staff believes this is a public health and safety issue that should be taken seriously and addressed in a expeditious manner," said Utilities Division Director Elijah Abinah in a Wednesday letter to the company. State law requires telecom companies to notify the commission about outages, but staff isn't aware of any notification from CenturyLink -- the agency found out from a news report, he said. Abinah asked the company to detail the cause and extent of the outage and what actions CenturyLink plans to prevent future outages. The Iowa Utilities Board “is aware of the outage and is looking into the impact to Iowa customers,” its spokesperson said. The telco said it's in touch with policymakers and will cooperate with any investigation; it didn't comment further Thursday.
Cities “have not come close to satisfying the stringent requirements for a stay pending review” of the FCC’s September wireless infrastructure order, the agency said Wednesday at the 10th U.S. Circuit Court of Appeals. San Jose and other cities sought stay last month, fearing irreversible harms (see 1812180052). The FCC disagreed, saying longstanding case law recognizes that Communications Act "Sections 253 and 332(c)(7) preempt state laws that materially inhibit wireless services.” The order “does not itself require localities to do anything, nor does it compel approval of any particular siting request; it simply articulates standards for courts to apply if and when they are confronted with any future siting disputes,” it said. “Even if localities were unable to recover compliance or other costs, monetary losses are not irreparable.” CTIA opposed cities’ motion in a Tuesday response (in Pacer). Cities haven't shown the order exceeded FCC authority, so they are unlikely to succeed on merits, the wireless association said. They fail to show irreparable harm, or that "the balance of equities tips in their favor,” since keeping the status quo would harm others, CTIA said. "One carrier has been forced to pause or decrease deployments in jurisdictions across the country due to excessive right-of way use or access fees, including fees in eight jurisdictions across four different states involving some combination of annual recurring charges of $1,000-$5,000 per node or pole; one-time fees of $10,000 plus $1,800 per permit, or $20,000; and annual recurring fees of $6,000, $25,000, or 5% of the provider’s gross revenues,” said CTIA, citing an Aug. 6 letter to the FCC from AT&T in docket 17-79. DOJ takes no position on the motion for stay, it said (in Pacer) Monday. Commissioner Brendan Carr, who spearheaded work on the FCC order, tweeted Tuesday that he wished “a full and speedy recovery” to one of the order’s chief critics, San Jose Mayor Sam Liccardo (D). The mayor suffered minor fractures Tuesday when a vehicle struck his bicycle, said his office.
States are looking into the CenturyLink outage that disrupted 911 systems across the country, with more formal investigations possible, said utility commissions we surveyed Wednesday. State-level probes are important and complement the federal probe announced last week by FCC Chairman Ajit Pai (see 1812280033), said NARUC and the National Association of State 911 Administrators (NASNA).
Political stars look aligned to pass a Colorado net neutrality bill in 2019, after Democrats gained a power trifecta in November’s election and flipped the attorney general’s office (see 1811070043), Democratic state lawmakers formulating such legislation told us. Incoming Attorney General Phil Weiser (D) stands ready to defend such a Colorado law, he said in another interview. Also, the Democrats said they want to increase support for broadband through additional funding and changes to state law.