Courts Again Shoot Down FCC For Ignoring The Law, Making Up Stuff

from the ill-communication dept

As the FCC has rushed to kiss up to telecom giants like AT&T and Verizon, it has enjoyed a fairly casual relationship with both the truth and the law. The agency's repeal of net neutrality, for example, was hinged largely on the idea that the modest rules devastated sector investment, something that data repeatedly disproved. Other Pai FCC policies have equally leaned on flimsy and manufactured data plucked directly from the mouths of sector lobbyists. And while this casual relationship to the truth may play well to Pai's allies, just making things up doesn't work quite as well when it comes time to defend these policies in the courts.

Case in point: earlier this year the FCC tried to take away a modest $25 per month broadband stipend for tribal residents (you know, for freedom or whatever), while also banning smaller companies from receiving broadband subsidies (giants like AT&T and Verizon surely appreciated that). But while Pai's office claimed screwing tribal residents would somehow massively spur broadband deployment, the courts shot that ruling down for being "arbitrary and capricious," noting that Pai's FCC failed completely to follow the law or to justify its policy with actual facts.

Fast forward to last week, and the FCC found itself again slapped down for playing fast and loose with factual reality. This time, the courts shot down a sizeable chunk of a recent proposal that gutted most state and local authority over the placement of cellular towers (and so-called "small cells," which are smaller antenna usually affixed to city street lights to extend wireless coverage). While the FCC claimed that doing so would speed up broadband deployment, a coalition of local leaders stated the plan was little more than a giveaway to giants like AT&T and Verizon, who don't like having to deal with pesky things like environmental reviews for cell tower placement.

And (and tell me if you're noticing a trend here), the courts were quick to point out (pdf) that the Pai FCC proposal (again) ignored the law and didn't justify the plan with, you know, facts.

Here's the court's comment on the FCC's attempt to exclude towns and cities from having a say where small cells are placed on city infrastructure, for example:

"The Commission failed to justify its determination that it is not in the public interest to require review of small cell deployments. We therefore grant the petitions in part because the Order’s deregulation of small cells is arbitrary and capricious. The Commission did not adequately address the harms of deregulation or justify its portrayal of those harms as negligible. In light of its mischaracterization of small cells’ footprint, the scale of the deployment it anticipates, the many expedients already in place for low-impact wireless construction, and the Commission’s decades-long history of carefully tailored review, the FCC’s characterization of the Order as consistent with its longstanding policy was not “logical and rational."

That's a polite way of saying the FCC didn't support its arguments with evidence, or adhere to FCC policy or the law. The FCC keeps claiming that rubber stamping AT&T and Verizon's every policy desire will somehow result in a massive boost in sector investment, but again, the data does not support those claims in any capacity:

"But FCC changes haven't had the impact that Carr claims. Another FCC order last year eliminated $2 billion worth of local fees charged to carriers for deployment of small cells on public rights-of-way. Carr had claimed that this decision was needed to boost 5G construction, but Verizon said that the FCC decision did nothing to speed up its deployment. Cities are suing the FCC to overturn that order."

Given the FCC keeps running into the same problem in the courts, all eyes are now on the ongoing lawsuit by 23 state AGs against the FCC for repealing net neutrality. A ruling in that case is expected any day now, and given the FCC's tendency toward fantasy, many sector watchers are left feeling somewhat optimistic the repeal may not hold.

Filed Under: arbitrary and capricious, broadband, cell towers, fcc


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  1. icon
    Gary (profile), 13 Aug 2019 @ 5:47am

    They Hate our Freedom

    Net Neutrality and CDA 230 are the keys to an open, working internet. Anyone that wants them struck down should be looked at with a good deal of suspicion. Pretty much any close examination shows they are trying to take power away from people and giving it to corporations so they can sell it back.

    reply to this | link to this | view in thread ]

  2. identicon
    TFG, 13 Aug 2019 @ 6:39am

    Re: They Hate our Freedom

    I like that the courts are proving willing to overturn FCC decisions. This bodes well.

    reply to this | link to this | view in thread ]

  3. icon
    ECA (profile), 13 Aug 2019 @ 6:46am

    Can someone prove..

    to me that Mr. Pai is smarter then he looks??
    Isnt he supposed to know his Own rules and regs??
    Hasnt he been a Lawyer??
    Or is this just a clown trying to look busy?

    reply to this | link to this | view in thread ]

  4. icon
    Berenerd (profile), 13 Aug 2019 @ 6:55am

    Re: Can someone prove..

    His laws and regs are what ever bossman (AT&T, Comcast, Verizon) say they are. I would say he knows that pretty well.

    reply to this | link to this | view in thread ]

  5. identicon
    TFG, 13 Aug 2019 @ 7:11am

    Re: Re: Can someone prove..

    Pai may know what the law actually says, but he also knows what's important to him, which is nothing beyond his own personal gain. His own personal gain is tied to rubber-stamping as much of Telecom's policy requests as he can get away with.

    If it doesn't stand up in court, he still did what they asked, it's just that other people got in the way.

    You watch - when he eventually leaves the FCC he'll go on a Telecom payroll of some kind.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 13 Aug 2019 @ 7:22am

    given the bullshit that Pai and the FCC majority agents come out with and the seeming desire for courts, in the main, to do what is counter-beneficial to the public, i am dubious as to whether the repeal of net meutrality will be reversed. since Trump was somehow voted in as POTUS, everything has been for the benefit of companies and the detriment of the people. even the DoJ ignore the precedents about reducing competition is somehow better for the service concerned at the time! if that were the case, how come, worldwide, the exact opposite is true? the MORE competition, the better service and cheaper the price and those at the top of the tree in companies are much more likely to be held to account when their dictated policies go tits up! but of course, everywhere else is wrong and the USA, the only one thinking like this, is right! yeah, of course!

    reply to this | link to this | view in thread ]

  7. icon
    Anonymous Anonymous Coward (profile), 13 Aug 2019 @ 7:57am

    It's like light is shining on the darkness of Pai

    "The Commission did not adequately address the harms of deregulation or justify its portrayal of those harms as negligible. In light of its mischaracterization of small cells’ footprint, the scale of the deployment it anticipates, the many expedients already in place for low-impact wireless construction, and the Commission’s decades-long history of carefully tailored review, the FCC’s characterization of the Order as consistent with its longstanding policy was not “logical and rational.""

    Seems like someone's gotten to the root of Pai's modus operandi.

    reply to this | link to this | view in thread ]

  8. icon
    Anonymous Anonymous Coward (profile), 13 Aug 2019 @ 8:00am

    While I'm at it

    "...all eyes are now on the ongoing lawsuit by 23 state AGs against the FCC for repealing net neutrality. A ruling in that case is expected any day now..."

    Could we get some kind of update as to exactly where this stands? It seems like it has been 'any day now' for a few months.

    reply to this | link to this | view in thread ]

  9. identicon
    Michael, 13 Aug 2019 @ 8:17am

    "Shoot Down FCC For Ignoring The Law, Making Up Stuff"

    I don't think that is fair. The FCC is not making this stuff up, they are simply re-publishing it. In fact, you could argue that the same concepts of section 230 should apply since the telecom industry is really where all of this comes from and the FCC is effectively just allowing them to post their own content.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 13 Aug 2019 @ 8:18am

    These are historical times

    In the not-too-distant future historians will look back on this administration as one of the most corrupt in American history. Assuming it doesn't somehow get worse, that is.

    Is there any data on courts vs. the government by administration? I couldn't find anything in a quick search but I'd be willing to bet that the Trump administration has seen more slap-downs in court than any other administration in modern history.

    reply to this | link to this | view in thread ]

  11. icon
    James Burkhardt (profile), 13 Aug 2019 @ 8:21am

    Re: While I'm at it

    Unfortunately, if the judge hasn't issued a ruling, there is no update. They went to court, arguments were made. The Judge isn't going to talk about the case until the ruling is issued.

    We have seen rulings take months when the judge is working to clearly document his process and lay the foundations so as to inform the innevitable appeals court of the legal wrangling. Unfortunately, we rarely can read into why delays like this occur. The judge might be trying to twist the law to fit a conclusion, or the judge might see long term consequences that they need to address, or might not like the conclusion they have reached. Or is just having difficulty making the ruling in general. Until a ruling is made, we don't know anything more.

    reply to this | link to this | view in thread ]

  12. icon
    Anonymous Anonymous Coward (profile), 13 Aug 2019 @ 8:27am

    Re: Re: While I'm at it

    Thank you.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 13 Aug 2019 @ 8:55am

    Re:

    lolwut?

    Please tell us you're joking.

    reply to this | link to this | view in thread ]

  14. icon
    Vidiot (profile), 13 Aug 2019 @ 10:01am

    Can you imagine being a career regulatory staff attorney at the Commission right about now? Waiting each week to see what berserko mandate comes down from the political appointee at the top, as he looks to feather someone's nest?

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 13 Aug 2019 @ 10:06am

    I have a feeling Mozilla is going to win the lawsuit.

    reply to this | link to this | view in thread ]

  16. identicon
    TMC, 13 Aug 2019 @ 10:13am

    Glad to see the courts have the balls to at least note a lack of evidence. Some of the Chevron stuff was disheartening.

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 13 Aug 2019 @ 12:19pm

    Re: These are historical times

    There is data on this, but in order to find and process it into something readable in one sitting, you'd need to pay PACER $.10 a page to view court records.

    If you're right, that's going to be an exceedingly large number of documents and a prohibitively costly research effort. God bless America.

    (As an added bonus, if you're unwilling to provide the DoJ with your credit card information you can enjoy a 7-10 day waiting period to receive your access code in the mail!)

    reply to this | link to this | view in thread ]

  18. icon
    Vidiot (profile), 13 Aug 2019 @ 1:06pm

    Re: Re: Re: Can someone prove..

    ... which will seem like no big deal, since that's where he came from. Just how fast can that revolving door spin?

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 13 Aug 2019 @ 3:20pm

    Re:

    "The FCC is not making this stuff up, they are simply re-publishing it."

    I assume the original publisher is the industrial lobby that gave it to the FCC to republish.

    reply to this | link to this | view in thread ]

  20. identicon
    Qwertygiy, 13 Aug 2019 @ 5:34pm

    There are significant partial records available at many other sources, such as justia. But the problem with partial records is that they are often, by nature, biased towards the present day; everything notable that is happening now can be recorded immediately, whereas the much larger collection of past notable events has to be collected from secondary sources.

    There is certainly a large amount of legal conflict in the Trump era, but off the top of my head, Reagan in particular was kept quite busy in court on many issues. The Nixon administration, of course, was tainted with many difficulties.

    reply to this | link to this | view in thread ]

  21. identicon
    Anonymous Coward, 13 Aug 2019 @ 5:57pm

    That sound you hear is Richard Bennett's knees scraping the floor. That damage isn't going to control itself after all.

    reply to this | link to this | view in thread ]

  22. identicon
    stine, 14 Aug 2019 @ 1:47pm

    Re: Re: They Hate our Freedom

    Don't expect too much, when the government has to prosecute the FCC in court, don't expect chairman Pai to be challenged too much by a-g Barr because they're both former Verizon lawyers.

    reply to this | link to this | view in thread ]


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