Court of Appeals Denies Cities’ Request to Stay FCC September 27, 2018 Infrastructure Order – New Rules Will Become Effective January 14, 2019

On January 10, 2019, the U.S. Court of Appeals for the 10th Circuit denied a motion to stay the effectiveness of the Federal Communications Commission’s ("FCC") September 27, 2018 Declaratory Ruling and Third Report and Order (see our advisory here). As a result, the FCC’s Declaratory Ruling and new rules will become effective January 14, 2019.

The motion to stay pending review was filed by a group of cities, led by the City of San Jose, California, who challenged the FCC’s September Order. The San Jose-led coalition filed their appeal in the 9th Circuit, but because multiple petitions for review were filed in other Circuits, the case was assigned to the Tenth Circuit pursuant to the rules creating a lottery for timely filed multi-Circuit petitions.

In a brief ruling, the 10th Circuit denied the cities’ motion to stay, holding that the cities had not met their burden of demonstrating that they would suffer irreparable harm absent the stay. In a second order also issued by the court today, the 10th Circuit granted the cities’ motion to transfer the consolidated petitions for review back to the 9th Circuit where an earlier challenge to an August 2018 FCC order is pending.

The FCC’s September Order was published in the Federal Register on October 15, 2018. As a result, under the terms of the September Order, the Declaratory Ruling and new rules set forth in the Order will become effective on Monday January 14, 2019.