Congress Questions FCC on Suspected Effort to Game Judiciary on Small Cell Order Appeals

January 29, 2019

Challenges to the FCC’s 5G order went to separate U.S. Circuit Courts of Appeals in an apparent effort steer the appeals away from 9thCircuit, and Congress wants to know if the FCC had any part in the effort, according to a letter from Energy and Commerce Committee Chairman Frank Pallone, Jr. (D-NJ) and Communications and Technology Subcommittee Chairman Mike Doyle (D-PA) to FCC Chairman Ajit Pai.

The Congressman requested information about what communications may have taken place between FCC and FCC licensees relating to legal challenges of the Commission’s Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment Declaratory Ruling and Third Report and Order.

Pallone and Doyle suspect that the FCC may have sought to stack the deck against local governments by directing carriers to challenge the order in separate circuit court jurisdictions, with the goal of moving the case out of the 9th Circuit Court of Appeals, which is perceived as being pro-municipality in its rulings.

“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,” the Representatives wrote to Pai. “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.”