FCC colluded with mobile carriers to “game” judicial procedure, congressmen charge

by Steve Blum • , , , ,

Charlottesville streetlights

People at the Federal Communications Commission might have leaned on AT&T, Verizon, Sprint and the Puerto Rico Telephone Company to go shopping for sympathetic judges who would be more likely to bless its preemption of local ownership of streetlight poles and similar municipal assets. A letter sent by a pair of democratic congressmen – Frank Pallone (D – New Jersey) and Mike Doyle (D – Pennsylvania) – directs republican FCC chairman Ajit Pai to enlighten them on why the four wireless companies filed largely identical and completely ludicrous appeals of its September order

It has come to our attention that certain individuals at the FCC may have urged companies to challenge the Order the Commission adopted in order to game the judicial lottery procedure and intimated the agency would look unfavorably towards entities that were not helpful. If true, it would be inappropriate for the FCC to leverage its power as a regulator to influence regulated companies to further its agenda in seeking a more friendly court. To date, four FCC licensees have petitioned the federal judiciary for review of the Order in separate filings and in separate circuits.

Whether or not the four mobile carriers colluded with friends at the FCC to find a friendly court, in the end it didn’t matter. The City of San Jose completed a legal Hail Mary pass and got the all the cases sent to the ninth circuit federal appeals court in San Francisco, which tends to take a more skeptical view of FCC authority.

The mobile companies, which claim the FCC committed a grievous error by not giving them the pink slip along with the keys to the city, are still in a position to disrupt the appeals launched and joined by dozens of cities, counties and associations from every corner of the U.S. To head that off, local governments are asking the ninth circuit to hold a “case management conference”…

Because this case involves appeals by representatives of industry (which argue that the agency did not go far enough in adopting remedies sought by industry) and representatives of local governments and organizations (which argue the FCC’s actions significantly exceeded the agency’s authority), there is also likely to be a more complex pattern of briefs filed in support of, and in opposition to the FCC’s Order than is reflected in a typical agency appeal.

Right now, nine cases – three filed by mobile carriers and six by local governments – are in the San Francisco court, with four more – one by AT&T and three by local governments – apparently inbound from the federal appeals court in Washington, D.C.