In Loss for Consumers, Ninth Circuit Rejects Challenge to FCC Deregulation of Telephone Reliability StandardsJanuary 23, 2020
Today, the Ninth U.S. Circuit Court of Appeals dismissed Public Knowledge’s appeal of the Federal Communications Commission’s November 2017 Order, “Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment,” on the grounds that Petitioners lacked standing. The case is Greenling Institute, et al. v. FCC, Case No. 17-73283.
Public Knowledge, joined by three other public interest groups, filed a petition challenging the FCC’s rollback of consumer protections adopted by the Obama FCC in 2015. The agency passed these rules in response to numerous consumer complaints stemming from Hurricane Sandy and the general degeneration of traditional, copper-line legacy phone service in rural America. The 2015 Order required incumbent phone companies provide timely notice to anyone potentially impacted by a decision to retire existing copper lines in order to avoid confusion and interruption of vital services. The 2015 Order also required the incumbent provider to offer a “functionally equivalent” service before shutting off legacy phone service. Finally, the 2015 Order created a new complaint process for situations where phone companies simply abandoned their legacy phone networks, cutting off rural Americans from even basic phone service. The 2017 Order eliminated all of these protections.
Public Knowledge argued before the court in August 2019 that the FCC’s actions violated the plain language of the Communications Act. The FCC also violated the Administrative Procedure Act (APA) by ignoring the extensive record gathered throughout these proceedings, and simply rejecting without explanation arguments and data it found inconvenient. The FCC compounded this by failing to give adequate notice of the scope of its intent in the 2017 proceeding.
In an unpublished opinion, the Ninth Circuit dismissed the case without reaching the merits, finding that Petitioners did not have standing to challenge the FCC’s 2017 Order.
The following can be attributed to Harold Feld, Senior Vice President at Public Knowledge:
“We are deeply disappointed with the Court’s decision to dismiss the case on standing grounds. As the California wildfires demonstrated, the deregulation of our telephone network can have devastating consequences. We will confer with our co-petitioners and consider what other avenues to pursue to ensure that all Americans have affordable, reliable access to critical communications infrastructure.”
You may view the petitioners’ brief for more information on the lawsuit as well as our recent blog post, “Making the Digital Transition an ‘Upgrade For All’ Again,” to learn more about why we went to court to defend consumer rights.