8th Circuit Denial of Stay and Transfer Draws Pai, Industry Praise Amid Mixed Prospects

Court refusal to stay an FCC business data service order and to transfer litigation drew praise from BDS order supporters and mixed views on its import, with some seeing a chance the court still could undo regulatory decisions. The 8th U.S. Circuit Court of Appeals Monday denied (in Pacer) motions to stay the deregulation and transfer the case to the D.C. Circuit, in ruling on various procedural motions in Citizens Telecommunications v. FCC, No. 17-2296. Letting BDS "modernization" take effect "is an important -- though unsurprising -- affirmation that the Commission thoroughly analyzed our massive data collection to establish a robust, forward-looking competitive framework. These reforms will encourage vigorous investment in next-generation networks," said Chairman Ajit Pai. Windstream, BT Americas, Incompas and the Ad Hoc Telecom Users Committee sought the stay, joined by Sprint and Granite Communications in requesting transfer (see 1707050032).

Larry Downes, Georgetown Center for Business and Public Policy project director, noted that "while the grant of a stay can signal the court believes the party is likely to prevail on the merits, the denial of a stay is the normal course of business. It suggests the 8th Circuit doesn’t see any obvious reason why the order will ultimately be rejected." FCC critics "did not have a good case on any of the prongs government stay requests," emailed Wilkinson Barker's Russell Hanser, who represents Citizens and CenturyLink on aspects of the case. Other litigants didn't comment. The Internet Innovation Alliance said the stay denial ensures rules move forward "that encourage greater investment and facilities-based competition" among networks. CCMI telecom consultant Andy Regitsky "did think there was a chance they would stay it. Still think on the merits the market test is a problem for the FCC.” Telecom attorney Jeff Carlisle noted "the 8th Circuit has reversed FCC decisions" and "also declined to do so under standard applications of Chevron deference. Just last week it declined to reverse an FCC pole attachment decision. So no one will have a really good sense of where this is headed until we all see the briefs and hear the oral argument."