9th Circuit Assigns OTMR Petition

As DWT previously reported, in August, the FCC released its Third Report and Order and Declaratory Ruling (“August Order”) in its wireline and wireless infrastructure dockets (WC Docket No. 17-84 and WT Docket No. 17-79) adopting, among other things, new “One Touch Make-Ready” rules (“OTMR”). In October 2018, American Electric Power Service Corporation and several other utilities jointly filed a petition for review challenging the OTMR portions of the August Order in the United States Court of Appeals for the 11th Circuit.

Earlier this month, on motion by the FCC, the petition challenging OTMR rules was transferred from the 11th to the 9th Circuit. Recently, the 9th Circuit consolidated the transferred petition (No. 19-70490) with the petitions that address other parts of the August Order (e.g., state and local moratoria) that were already pending in the 9th Circuit (No. 18-72689), and assigned them to the same panel that will consider other petitions concerning the FCC’s Declaratory Ruling and Third Report and Order released in September 2018 (Lead case no. 19-70123).

A case management conference for these proceedings, which will address scheduling, briefing, related agency proceedings, and other matters, is scheduled for April 18, 2019. The review of all the petitions, orders and rules by that panel (including briefing) is currently deferred while the FCC completes reconsideration. DWT will monitor this proceeding and issue updates with any noteworthy developments.