Thread by @haroldfeld

This week is a big one for the great @FAA v. @FCC 5G #Cband showdown. ICYMI Airlines 4 America (A4A), the trade association for airlines, filed an emergency pet with the FCC to delay activation of #5G in C-Band.
ecfsapi.fcc.gov/file/123022756…

@faa @FCC A4A is playing stupid games, because they waited until the FCC closed on Dec. 30 to file. Since the FCC was closed Dec. 31, and A4A says they will appeal today, this gives FCC no time to review or respond to stay petition.

@faa @FCC Granted A4A arguably waited to see if FCC would respond to various filings and pending recon petition, but still could have filed Dec. 27 if they wanted FCC to respond. /3

@faa @FCC Point of this is to meet requirement to ask agency first before going to court. So A4A filed when it knew FCC would not be able to respond. We will see if court is impressed or not. /4

@faa @FCC At the moment, ATT & VZ are scheduled to turn on their lower C-Band 5G systems on 1/5 (Wed.) Carriers have promised to use voluntary mitigation measures (based on existing French rules) to further reduce chances of harmful interference with altimeters. theverge.com/2022/1/2/22863… /5

@faa @FCC So what happens? Hard to say what a court will do here, but my bet is that whatever court A4A appeals to (I'm betting 5th Cir. and that carriers will want it transferred to D.C. Cir -- fun jurisdictional Q here) will not issue a stay. Here's why. /6

@faa @FCC The FAA is master of air safety. The FCC is master of spectrum use. There is no contradiction between the FAA's actions and the FCC's actions -- from a federal conflict perspective.
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@faa @FCC Airlines could have sued FAA for its air directive on grounds that FCC has said there is no substantial risk of harmful interference. But they chose to sue FCC. This raises a bunch of problems for A4A. /8

@faa @FCC The first problem for A4A is that the FCC is not the proximate cause of their problem. The actual agency imposing a cost on A4A members is FAA. Sure, FAA is responding to FCC decision, but is this proximate enough to satisfy injury in fact? /9

@faa @FCC Let's assume standing is satisfied. The next problem for A4A is merits. As we saw last week with the 6 GHz case (AT&T v. FCC), the FCC gets enormous deference on its technical decisions. /10

@faa @FCC Additionally, the FCC is not required to respond to the Petition for Recon filed by aviation industry back in May 2020 on any particular schedule. ecfsapi.fcc.gov/file/105273792…
So FCC not obligated to respond to the new stuff in record.

@faa @FCC So not clear what administrative error the FCC has made here for a court to reverse the FCC. Best bet is mandamus to respond to emergency petition. But grant of stay petitions is voluntary on part of agency. /12

@faa @FCC But what about FAA's ruling that it won't let planes fly? Well, that's the FAA's business. Nothing prevents the FAA from deciding, under its own statute, that there is some danger that it must address. (I assume, I'm not an aviation lawyer). /13

@faa @FCC From a reviewing court's perspective, there is no problem with one agency authorizing something in its jurisdiction (carriers doing 5G) and another agency doing something under its authority. /14

@faa @FCC Again, nothing forecloses the A4A from appealing the FAA's actions (as far as I know). I get they may not want to, and they may even agree with the FAA substantively, but that is not a court's problem. /15

@faa @FCC A4A could have skipped petition for recon and appealed with other folks unhappy with C-Band decision back in 2020. They didn't. So now stuck with current order until FCC resolves Petition for Recon/ /16

@faa @FCC Anyway, we'll see if A4A follows through and appeals. Or if FAA decides to accept most recent carrier offer. reuters.com/business/media…
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