Law Suits Challenging FCC Orders

Case No. 19-70144 To Be Argued on Feb 10, 2020

On 12/01/2019, the Ninth Circuit Court of Appeals issued a Notice of Oral Argument for Mon, Feb 10, 2020 at 9:00 am in Courtroom 3, Pasadena CA. If you are the specific attorney or self-represented party who will be arguing, use the ACKNOWLEDGMENT OF HEARING NOTICE filing type in CM/ECF no later than Mon, Jan 20, 2020 (21 days before Monday, February 10, 2020)"The Petitions for Review of the “Moratorium Order” in 18-111 and “Small Cell Order”, 18-133 will be argued together on Feb 10, 2020 in Pasadena, CA. All parties challenging those orders will have a total of forty minutes to present argument. The United States will have forty minutes to respond. The parties challenging the orders shall confer on allocation of their time. The Petition for Review of the “One Touch Make Ready Order” in 18-111 shall be heard separately, and each side will have a total of fifteen minutes to present argument."

. . . also, as a result of issuing FCC 19-126, the FCC is trying to pull a fast one . . .

A Dec 19. 2019 FCC Letter to the Ninth Circuit Stated:

FCC 19-126 — "The Radiofrequency Order “resolve[s] and terminate[s] the inquiry to review [the FCC’s radiofrequency] exposure standards and certain related policies initiated in the [agency’s] 2013 RF Notice.”: FCC 13-84 — Reassessment of Federal Communications Commission Radiofrequency Exposure Limits and Policies, 28 FCC Rcd 3498 from 2013.

The Radiofrequency Order accordingly moots Montgomery County’s independent challenge to the Small Cell Order—in which the County asks this Court to “vacat[e] and remand” — the Small Cell Order: FCC 18-133: Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd 9088 from 2018 — “so that the FCC can complete the 2013 review.”

If Montgomery County disagrees with how the Commission resolved the 2013 RF Notice, it may raise them in a challenge to the Radiofrequency Order. There is thus no basis for this Court to reach such concerns here. Montgomery County stated that the FCC should have “complet[ed] the 2013 review before taking further action to address local zoning” in the Small Cell Order, but whatever force that argument might conceivably have had if the Commission had found, as the County anticipated it might, that “the new [Densified 4G and 5G environment … poses health risks,” the Commission has instead determined that the existing radiofrequency exposure limits “reflect the best available information concerning safe levels of [radiofrequency] exposure,” and that there is “no appropriate basis for … amend[ing] [those] existing limits. The FCC “dismissed the notion that the existing framework should be altered on account of any ‘non-thermal’ effects”

Montgomery County Responded to the Ninth Circuit on Dec 23, 2019:

FCC 19-126 — "The Radiofrequency does not moot Montgomery County’s challenge to FCC 18-133 — the Small Cell Order.

The FCC mischaracterizes Montgomery County’s lawsuit and comments in the administrative record. Montgomery County and others asked the FCC to update the RF standards and ensure they are protective of human health before rolling-out Densified 4G and 5G small cells in public spaces and residential areas because the FCC had not considered research showing non-thermal negative health consequences from radiofrequencies (RF) emitted from the proliferation of 4G and 5G transmitters at close proximity to the population. Montgomery County asked if the existing FCC RF Exposure guidelines are protective, not merely that the 2013 proceedings be “closed.” Montgomery County requested that the FCC complete the 2013 proceedings and “otherwise” conduct an environmental review.

The Radiofrequency Order’s resolution of the 2013 proceedings (in only six pages) does not mention, let alone discuss, Densified 4G/5G transmitters, non-thermal effects, or the impact of accelerating and densifying the siting of 5G small cells in public spaces and residential areas . . . This is a wholesale failure to provide the relief requested in this lawsuit.

It is patently obvious the FCC is simply trying to delay judicial review of its failure to consider negative health consequences for Denisifed 4G and 5G deployments. By forcing Montgomery County to file another lawsuit, carriers may be able to install numerous 5G transmitters unabated under the Small Cell Order for years to come. This Court should not countenance such litigation tactics. We request additional briefing.

Consolidated Case No. 19-70144 Attorneys

Joseph Van Eaton — joseph.vaneaton@bbklaw.com
BEST BEST & KRIEGER LLP
2000 Pennsylvania Ave. NW, Suite 5300
Washington, DC 20006
202-785-0600

Gail Karish — gail.karish@bbklaw.com
BEST BEST & KRIEGER LLP
300 South Grand Ave., 25th Fl.
Los Angeles, CA 90071
213-617-8100
Lead Attorneys for Case No. 19-70144, San Jose et al. v FCC

Ken Fellman — kfellman@kandf.com
Gabrielle Daley — gabrielle@kandf.com
KISSINGER & FELLMAN, PC
3773 Cherry Creek N. Drive, Suite 900
Denver, Colorado 80209
303-320-6100
Attorneys for Petitioners in Case No. 1970136
Attorneys for Certain Intervenors in Case Nos. 19-70341 and 19-70344

Tillman Lay — tim.lay@spiegelmcd.com
Jeffrey Bayne — jeffrey.bayne@spiegelmcd.com
SPIEGEL & MCDIARMID LLP
1875 Eye Street, N.W., Suite 700
Washington DC 20006
202-839-4000
Attorneys for Petitioners in Case Nos. 1970145 and 19-70344
Attorneys for Certain Intervenors in Case Nos. 19-70339 and 1970341

Michael J. Watza — mike.watza@kitch.com
KITCH DRUTCHAS WAGNER VALITUTTI & SHERBROOK
1 Woodward Ave., 10th Floor
Detroit, MI 48226-3499
313-965-7983
Attorney for Petitioners in Case No. 1970144
Attorney for Petitioners and Certain Intervenors in Case No. 19-70341
Attorney for Intervenors in Case Nos. 19-70136 and 19-70146

Dennis Herrara — dennis.herrara@sfcityatty.org, City Attorney
Theresa Mueller — theresa.mueller@sfcityatty.org, Chief Energy and Telecommunications Deputy
William Sanders — william.sanders@sfcityatty.org, Deputy City Attorney
CITY OF SAN FRANCISCO
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
415-554-4700
Attorneys for Petitioner in Case No. 1970145

Michael E. Gates — michael.gates@surfcity-hb.org, Elected City Attorney
Michael Vigliotta — mvigliotta@surfcity-hb.org, Chief Assistant City Attorney
OFFICE OF THE CITY ATTORNEY CITY OF HUNTINGTON BEACH
2000 Main St., Fourth Floor
Huntington Beach, CA 92648
714-536-5662
Attorneys for Petitioners in Case No. 1970146

Robert May — tripp@telecomlawfirm.com
Michael Johnston — mjohnston@telecomlawfirm.com
TELECOM LAW FIRM, PC
3570 Camino de Rio N., Suite 102
San Diego, CA 92108
619-272-6200
Attorneys for Certain Petitioners in Case No. 19-70136
Attorneys for Intervenors in Case Nos. 1970341 and 19-70344

Georgia M. Pestana — gpestana@law.nyc.gov Acting Corporation Counsel
CITY OF NEW YORK
Claude Platton — cplatton@law.nyc.gov
Elina Druker — edruker@law.nyc.gov
100 Church Street
New York, NY 10007
212-356-2609 or -2502
Attorneys for Intervenor in Case Nos. 19-70326, 19-70339, 9-70341, and 19-70344

Nancy Werner — nwerner@natoa.org, General Counsel
NATIONAL ASSOCIATION OF TELECOMMUNICATIONS OFFICERS AND ADVISORS (NATOA)
3213 Duke St., Suite 695
Alexandria, VA 22314
703-519-8035
Attorneys for Intervenor in Case Nos. 19-70326, 19-70339, 9-70341, and 19-70344

Eric Gotting — gotting@khlaw.com
Arthur Garrett — garrett@khlaw.com
KELLER AND HECKMAN LLP
1001 G Street, N.W., Suite 500 West
Washington, D.C. 20001
202-434-4269
202.434.4248
Attorneys for Petitioner in Case No. 1970147

Sean Stokes — sstokes@baller.com
James Baller — jim@baller.com
BALLER STOKES & LIDE, PC
2014 P Street, N.W., Suite 200
Washington DC 20036
202-833-5300
Attorneys for Petitioners in Case No. 1970339

Law Suits Against 2017-2019 FCC Orders Abound and Proceed

1. Law Suit Challenging FCC 17-155: Dec 2017 Lifeline Order

Case 18-1026: National Lifeline Association v. FCC
Dec 2017 Lifeline Order printed in Federal Register on 1/16/18
FCC 17-155: Fourth Report and Order, Order On Reconsideration, Memorandum Opinion And Order, Notice of Proposed Rulemaking, And Notice Of Inquiry
- WC Docket No. 17-28: Bridging the Digital Divide for Low-Income Consumer
- WC Docket No. 11-42: Lifeline and Link Up Reform and Modernization
- WC Docket No. 09-19: Telecommunications Carriers Eligible for Universal Service Support
Oct 25, 2018 Oral Arguments Recording, 52 minutes
Judges Rogers, Griffith, Randolph
Decision FCC Lost: USCA Case #18-1026 Document #1208099669

Ourtcome: U.S. Court of Appeals for the D.C. Circuit vacated and remanded the FCC’s 2017 Order that would have eliminated wireless resellers from the Tribal Lifeline program and restricted that program to rural Tribal lands. The Court’s decision will allow wireless resellers to continue to provide Lifeline service to two-thirds of all participants in the Tribal Lifeline program. From the decision:

The Commission’s adoption was arbitrary and capricious by not providing a reasoned explanation for its change of policy that is supported by record evidence. In adopting the Tribal Facilities Requirement, the Commission’s decision . . .

. . . evinces no consideration of the exodus of facilities-based providers from the Tribal Lifeline program.

Neither does it point to evidence that banning resellers from the Tribal Lifeline program would promote network buildout.

Nor does it analyze the impact of the facilities requirement on Tribal residents who currently rely on wireless resellers.

Further, the Commission ignored that its decision is a fundamental change that adversely affects the access and affordability of service for residents of Tribal lands.

Similarly, in adopting the Tribal Rural Limitation, the Commission’s decision evinces no consideration of the impact on service access and affordability. Its decision does not examine wireless deployment data related to services to which most Tribal Lifeline recipients subscribe.

Various non-harmless procedural deficiencies exist as well.

The Commission failed to provide an adequate opportunity for comment on the proposed limitations. For instance, the 2017 supplemental notice of proposed rulemaking lacked key information needed for interested persons to anticipate that small towns below 10,000 in population would be excluded.

Because the Commission stated that it intended to address remaining Tribal issues in a future rulemaking, petitioners reasonably did not submit current data on abandonment of the Lifeline program by facilities-based providers.

Two weeks’ notice in the form of an unpublished draft order was inadequate

NaLA would like to acknowledge and thank those who led our team that made today’s victory for Tribal Lifeline subscribers possible. These individuals include our attorneys, John Heitmann and Jameson Dempsey of Kelley Drye, and Kim Lehrman and Jose Cortes on NaLA’s regulatory affairs committee. We also want to extend our thanks to the Tribes and the team who represented the Tribes, as their participation in the appeal process was essential to the result achieved today.

2. Law Suit Challenging FCC 17-166: Dec 2017 Repeal of Net Neutrality Order

Case 18-1051: Mozilla Corporation v. FCC
Dec 2017 Repeal of Net Neutrality Order printed in Federal Register on 2/22/18
FCC 17-166: Declaratory Ruling, Report and Order, and Order
- WC Docket No. 17-108: Restoring Internet Freedom

Feb 1, 2019 Oral Arguments Recording, 4 hours, 23 minutes
Judges Millett, Wilkins, Williams

Ourtcome: . . . Decided see xxx

3. Law Suit Challenging FCC 18-30: Mar 2018 Exempting Small Cell Deployment from NEPA and NHPA Review

Case 18-1129: United Keetoowah Band of Chero v. FCC
Mar 2018 Exempting Small Cell Deployment from National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA) Review printed in Federal Register on 5/03/18
FCC 18-30: Second Report and Order
- WT Docket No. 17-79: Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment
xxx, 2019 Oral Arguments Recording, 1 hour, 16 minutes
Judges Tatel, Pillard, Edwards