Ninth Circuit Case 18-9568 — Repeal of FCC 18-133

  • Tenth Circuit Case 18-9568 . . . was moved to the Ninth Circuit.
  • Ninth Circuit Case 19-70144 (case opened on Jan 15, 2019; a consolidation of nine separate cases) — including Repeal of FCC 18-111 and FCC-18-133

Tenth Circuit Motions for Stay of FCC 18-133, the Wireless and Wireline Infrastructure Order

Updated on Jan 9, 2018 @ 1:40 pm ET

January 10, 2019: Appellate Case: 18-9568

Before McHUGH and MORITZ , Circuit Judges.

Petitioners are local governments and other entities with similar interests who seek a stay of an FCC order that is scheduled to take effect in part on Monday, January 14, 2019. The Supreme Court has explained that

“[a] stay is not a matter of right, even if irreparable injury might otherwise result. It is instead an exercise of judicial discretion, and [t]he propriety of its issue is dependent upon the circumstances of the particular case.”Nken v. Holder , 556 U.S. 418, 433 (2009) (internal quotation marks and citation omitted).

“The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id . at 433-34.

When deciding whether to exercise our discretion to grant a stay, we consider the following four traditional stay factors:

  1. Whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits;

  2. Whether the applicant will be irreparably injured absent a stay;

  3. Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and

  4. Where the public interest lies.

Id . at 434 (internal quotation marks omitted).

The Supreme Court has indicated that “[t]he first two factors of the traditional standard are the most critical.” Id.

After reviewing all of the parties’ submissions, we conclude petitioners have failed to meet their burden of showing irreparable harm if a stay is not granted. Accordingly, in the exercise of our discretion, we deny petitioners’ motion for stay.

January 10, 2019: Appellate Case: 18-9563

Before BRISCOE, BACHARACH, and PHILLIPS, Circuit Judges

On September 27, 2018, the Federal Communications Commission issued an order entitled Declaratory Ruling and Third Report and Order (the “September Order”). FCC 18-133, 83 Fed. Reg. 51,867 (Oct. 15, 2018). The United States Judicial Panel on Multidistrict Litigation designated this circuit as the court in which to consolidate the various petitions for review of the September Order.

These matters are before us on a Motion to Transfer, filed by the petitioners in City of San Jose, et al. v. F.C.C., et al. , No. 18-9568. The San Jose Petitioners seek to transfer these matters, pursuant to 28 U.S.C. § 2112(a)(5), to the United States Court of Appeals for the Ninth Circuit where a first-in -time petition for review of an order issued by the FCC on August 3, 2018 is pending. Third Report and Order and Declaratory Ruling, FCC 18-111, 83 Fed. Reg. 46,812 (Sep. 14, 2018) (the “August Order”). The FCC and the United States filed a response opposing transfer and supplemental authority. Sprint Corporation, Verizon Communications, Inc., Puerto Rico Telephone Company, Inc., CTIA – The Wireless Association®, the Wireless Infrastructure Association, and the Competitive Carriers Association also filed a response opposing transfer. Finally, the San Jose Petitioners filed a reply in support of their motion.

After careful consideration, we conclude that the FCC’s August Order and its September Order are the “same order” for purposes of § 2112(a). Accordingly, the motion to transfer is granted and these matters are transferred to the United States Court of Appeals for the Ninth Circuit.1

  1. Four petitions for review of the September Order are presently pending before the United States Court of Appeals for the District of Columbia Circuit. See AT&T Services, Inc., v. FCC , No. 18-1294 (D.C. Cir. filed Oct. 25, 2018); American Public Power Ass’n v. FCC , No. 18-1305 (D.C. Cir. filed Nov. 15, 2018); City of Austin v. FCC , No. 18-1326 (D.C. Cir. filed Dec. 11, 2018); City of Eugene v. FCC , No. 18-1330 (D.C. Cir. filed Dec. 12, 2018). As these petitions are not before us, this order does not address them.