Update #3: On August 13, 2020, in an 82-page opinion, a panel of the 9th Circuit upheld 2-1 the challenged aspects of all three of the FCC's Small Cell, Local Moratoria and OTMR orders in all but one respect – the court vacated elements of the Small Cell Order that sought to standardize local government interpretations of 5G node aesthetics, and remanded that aspect to the FCC. Otherwise, the court deferred to the FCC's interpretation of the Communications Act. The dissent was confined to disagreeing with whether the FCC record supported a prohibition on municipalities charging fees in excess of costs (as opposed to exorbitant fees). Parties can seek rehearing by the panel, or the full court en banc, within 45 days, seek certiorari in 90 days of the decision or 90 days after any rehearing petitions are resolved.

Update #2: On December 1, 2019, the 9th Circuit announced the date for expedited argument in the three consolidated cases seeking review of the FCC orders on small cell deployment, prohibitions on wireless moratoria, and OTMR, for February 10, 2020, in Pasadena.

Although the petition for review of the OTMR order was consolidated with petitions challenging the effective prohibition orders, and assigned to the same panel for oral argument, a separate motion to sever OTMR for oral argument must be decided by the three judge merits panel, which has not yet been assigned. If the motion to sever argument on OTMR is denied, the challenges to the OTMR order would be heard in February along with the challenges to the other two orders. If the motion to sever argument is granted, it is not clear when the OTMR petitions would be heard. In addition, all three orders are subject to pending petitions for reconsideration at the FCC.

Update: On Wednesday, April 24, 2019, the 9th Circuit denied the FCC’s motion to continue the stay of proceedings in Case No. 18-72689, and, as a result, the briefing schedule remains in effect.

On April 19, 2019, the FCC published the Office of Management and Budget’s approval of the one-touch make-ready (OTMR) rules in the Federal Register and set May 20, 2019 as the effective date for these rules.

As previously reported by DWT the joint electric utility challenge to the OTMR rules was transferred to the 9th Circuit and consolidated with the challenge to the FCC rules prohibiting state and local telecommunications deployment moratoria. Yesterday the Appellate Commissioner in the 9th Circuit held a case management conference to address (a) the consolidated petitions for review challenging the OTMR portion (Case No. 19-70490) and the moratoria portion (lead Case No. 18-72689) of the FCC’s August 2018 Third Report and Order and Declaratory Ruling; and (b) the consolidated petitions for review concerning the Commission’s September 2018 Infrastructure Order (lead Case No. 19-70123) in the Declaratory Ruling and Third Report and Order. The Appellate Commissioner announced the following briefing schedule for Case Nos. 18-72689 (moratoria) and 19-70123 (infrastructure):

In a separate order, the court will address the pending FCC requests to stay consideration of the Petitions for Review until the FCC has ruled on pending reconsideration requests at the agency.  Argument is not scheduled yet but any party may move to expedite argument after the due date for Respondents’ answering briefs. DWT will continue to monitor this proceeding and issue updates with any noteworthy developments.

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