Law Suits v FCC Proceedings

Law Suits Against 2017-2019 FCC Proceedings 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
  • Decision: pending

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
  • Mar 15, 2019 Oral Arguments Recording, 1 hour, 16 minutes
  • Judges Tatel, Pillard, Edwards
  • Decision: pending