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Broadband Deployment Law Advisor Insight and Commentary on the Deployment of Communications Infrastructure

Ninth Circuit Assigns OTMR Petition

Posted in Cable, Pole Attachments, Regulatory, Wireline

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 Eleventh Circuit. Earlier this month, on motion by the FCC, the petition challenging OTMR rules was transferred from the Eleventh to the Ninth Circuit. Recently, the Ninth 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 Ninth 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.