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Pallone and Doyle Question FCC on Potential Effort to Game Judicial Lottery

Jan 24, 2019
Press Release
FCC May Have Directed Challenges to 5G Order in Separate U.S. Circuit Courts of Appeals

Energy and Commerce Committee Chairman Frank Pallone, Jr. (D-NJ) and Communications and Technology Subcommittee Chairman Mike Doyle (D-PA) sent a letter to Federal Communications Commission (FCC) Chairman Ajit Pai today requesting 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 (Order).  

Before the Order was approved in September 2018, nine Committee Democrats voiced their strong concerns that the Order would ultimately delay efforts to implement next generation broadband infrastructure.  The Democrats wrote that the FCC did not adequately consider the role of cities and municipalities in the deployment of 5G, which resulted in an order that will harm consumers and localities.  Now, it has come to Pallone and Doyle’s attention that the FCC may have sought to stack the deck even more 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 Ninth Circuit Court of Appeals.

“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 Democrats 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.”

The Democrats requested that Chairman Pai provide answers to the following questions and provide the requested documents within three weeks of the FCC receiving normal operational funding:

  • Did the FCC have communications with an FCC licensee relating to the legal challenges or potential legal challenges of the Order?
  • If so, identify every person(s) and/or FCC employee(s) involved in the communication(s), describe in detail the communication(s), and provide all documents in your possession, custody, or control relating to such communication(s).
  • Did any person at the FCC and/or FCC employee at the FCC urge an FCC licensee to challenge the Order?

To the extent that an FCC licensee refused to challenge the Order, has any person at the FCC and/or FCC employee threatened or taken adverse action against such FCC licensee, including but not limited to delaying consideration of items or issue of interest to such person?

The letter is available HERE.