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Case: 18-2063 Document: 00117357758 Page: 1 Date Filed: 10/25/2018 Entry ID: 6208710 Case: 18-2063 Document: 00117357758 Page: 1 Date Filed: 10/25/2018 Entry ID: 6208710 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT PUERTO RICO TELEPHONE COMPANY, INC., Petitioner, v. Case No. 18-_______ FEDERAL COMMUNICATIONS COMMISSION, and UNITED STATES OF AMERICA, Respondents. PETITION FOR REVIEW Pursuant to 47 U.S.C. § 402(a), 28 U.S.C. §§ 2342(1) and 2344, and Rule 15(a) of the Federal Rules of Appellate Procedure, Puerto Rico Telephone Company, Inc. d/b/a Claro (“PRTC”) hereby petitions this Court for review of the final order of the Federal Communications Commission captioned In re Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, WT Docket No. 17-79, WC Docket No. 17-84, FCC 18-133 (rel. Sept. 27, 2018) (“Order”). The Order was published in the Federal Register on October 15, 2018. Case: 18-2063 Document: 00117357758 Page: 2 Date Filed: 10/25/2018 Entry ID: 6208710 See 83 Fed. Reg. 51867.1 A copy of the full text of the Order is attached as Exhibit A. In the Order, the Commission issued guidance and adopted rules to streamline the wireless infrastructure siting review process in order to facilitate the deployment of wireless facilities, including fifth-generation or “5G” facilities. Despite substantial evidence in the record supporting the need for the Commission to adopt a “deemed granted” remedy when authorities subject applications for wireless infrastructure siting to unreasonable delays or effective prohibitions, the Commission declined to adopt such a remedy. PRTC, which participated in the proceeding below, is the largest provider of telecommunications services in Puerto Rico and must deploy wireless facilities. PRTC is therefore aggrieved by the Order and possesses standing to challenge it. Venue is proper in this Court because PRTC resides in and has its principal office in Puerto Rico. 28 U.S.C. § 2343. PRTC seeks relief on the grounds that the Commission’s decision not to adopt a “deemed granted” remedy is (1) arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701 1 Pursuant to the Commission’s rules, a party that wishes to avail itself of procedures established for the selection of a court in the case of multiple petitions for review of the same Commission action, 28 U.S.C. § 2112(a), must file its petition for review within 10 days of publication of that order in the Federal Register. See 47 C.F.R. §§ 1.4(b), 1.13(a). 2 Case: 18-2063 Document: 00117357758 Page: 3 Date Filed: 10/25/2018 Entry ID: 6208710 et seq.; (2) inconsistent with sections 253 and 332 of the Communications Act, 47 U.S.C. §§ 253, 332; and (3) otherwise contrary to law. Accordingly, PRTC respectfully requests that this Court remand the relevant portion of the Order to the Commission, without vacatur, and with instructions for the Commission to adopt a “deemed granted” remedy as soon as is practicable. Respectfully submitted, By: s/ Megan L. Brown Megan L. Brown* Jeremy J. Broggi WILEY REIN LLP 1776 K Street, NW Washington, DC 20006 (202) 719-7000 [email protected] Dated: October 25, 2018 Counsel for Petitioner *Counsel of Record 3 Case: 18-2063 Document: 00117357758 Page: 4 Date Filed: 10/25/2018 Entry ID: 6208710 CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Puerto Rico Telephone Company, Inc. d/b/a Claro (“PRTC”) hereby submits the following statement: PRTC states that it is a wholly owned subsidiary of Telecomunicaciones de Puerto Rico, Inc. (“TELPRI”). TELPRI is wholly owned by Tenedora Telpri, S.A. de C.V., a subsidiary of América Móvil, S.A.B. de C.V., which is a publicly traded company. Respectfully Submitted, By: s/ Megan L. Brown Megan L. Brown WILEY REIN LLP 1776 K Street, NW Washington, DC 20006 (202) 719-7000 [email protected] Counsel for Petitioner Case: 18-2063 Document: 00117357758 Page: 5 Date Filed: 10/25/2018 Entry ID: 6208710 CERTIFICATE OF SERVICE I, Megan L. Brown, hereby certify that on October 25, 2018, I filed the foregoing Petition for Review via the Court’s Appellate ECF filing system. I further certify that I caused one copy to be served on the following counsel by the manner indicated: By First Class Mail and By First Class Mail: Electronic Mail: Jeff Sessions Thomas M. Johnson, Jr. Attorney General of the United States General Counsel U.S. Department of Justice Federal Communications Commission 950 Pennsylvania Avenue, N.W. 445 12th Street, S.W. Room 3601 Room 8-A741 Washington, DC 20530-0001 Washington, DC 20554 [email protected] And I further certify that consistent with Rule 15(c) of the Federal Rules of Appellate Procedure, I caused one copy to be delivered by first class mail to each of the parties listed below who participated in the agency proceeding. s/ Megan L. Brown Megan L. Brown Case: 18-2063 Document: 00117357758 Page: 6 Date Filed: 10/25/2018 Entry ID: 6208710 Service List Party Address 5G Americas 1750 Avenue, N.E. B220 Bellevue, WA 98004 Aaron Rosenzweig 1 Thorburn Road Gaithersburg, MD 20878 ACT | The App Association 1401 K Street, N.W. Suite 501 Washington, DC 0005 Advisors to the International EMF Scientist 3248 N. Hill Farm Drive Appeal Tucson, AZ 85712 Advisory Council on Historic Preservation 401 F Street, N.W. Suite 308 Washington, DC 20001-2637 African American Mayors Association 1100 17th Street, N.W. Washington, D.C 20036 Agua Caliente Band of Cahuilla Indians 5401 Dinah Shore Drive Tribal Historic Preservation Office Palm Springs, CA 92264 Alaska Department of Transportation & 3132 Channel Drive Public Facilities P.O. Box 112500 Juneau, AK 99811-2500 Alaska Native Health Board 4000 Ambassador Drive Suite 101 Anchorage, AK 99508 Alaska Office of History and Archaeology 550 West 7th Avenue Suite 1310 Anchorage, AK 99501 Alaska State Historic Preservation Officer 550 West 7th Avenue Suite 1310 Anchorage, AK 99501 Alexandra Ansell 728 John Adams Lane West Melbourne, FL 32904 American Association of State Highway 444 N Capitol Street. N.W. and Transportation Officials Suite 249 Washington, DC 20001 Case: 18-2063 Document: 00117357758 Page: 7 Date Filed: 10/25/2018 Entry ID: 6208710 American Association of State Highway 444 N Capitol Street. N.W. and Transportation Officials Suite 249 Washington, DC 20001 American Bird Conservancy 4103 Connecticut Avenue, N.W. #451 Washington, DC 20008 American Cable Association 2415 39th Place, N.W. Washington, DC 20007 American Petroleum Institute 1220 L Street, N.W. Washington, DC 20005 American Public Power Association 2014 P Street, N.W. Suite 200 Washington, DC 20036 Angela Fox 5216 Greenleaf Drive Nashville, TN 37211 Arctic Slope Regional Corporation 3900 C Street Suite 801 Anchorage, AK 99503 Arizona State Parks & Trails, State Historic 1100 W Washington Street Preservation Office Phoenix, AZ 85007 Arkansas SHPO 1100 North Street Little Rock, AR 72201 Arnold A. McMahon 1115 Highland Oaks Drive Apt. 21 Arcadia, CA 91006 Association of American Railroads 555 Thirteenth Street, N.W. Washington, DC 20004 AT&T 601 Massachusetts Avenue, N.W. Washington, DC 20001 B. Golomb 9333 Genesee Avenue Suite 210 San Diego, CA 92121 Bad River Band of Lake Superior Tribe of 1333 New Hampshire Avenue, N.W. Chippewa Indians Washington, DC 20036 Benjamin L. Yousef 9834 Lakeford Drive St. Louis, MO 63123 BioInitiative Working Group 1396 Danelson Road Santa Barbara, CA 93108 Case: 18-2063 Document: 00117357758 Page: 8 Date Filed: 10/25/2018 Entry ID: 6208710 Blue Lake Rancheria 428 Chartin Road Blue Lake, CA 95525 Board of County Road Commissioners of 31001 Lahser Road the County of Oakland Beverly Hills, MI 48025 Bristol Bay Area Health Corporation P.O. Box 866 6000 Kanakanak Road Dillingham, AK 99576 Cahuilla Band of Indians 52701 CA Hwy. 371 Anza, CA 92539 California Office of Historic Preservation, 1725 23rd Street Department of Parks and Recreation Suite 100 Sacramento, CA 95816 California Public Utilities Commission 505 Van Ness Avenue San Francisco, CA 94102 Cape Cod Bird Club, Inc. P.O. Box 485 Centerville, MA 02632 Catawba Indian Nation Tribal Historic 1536 Tom Steven Road Preservation Office Rock Hill, SC 29730 Catherine Kleiber N9387 Riverview Drive Waterloo, WI 53594 Charter Communications, Inc. 1251 Avenue of the Americas New York, NY 10020 Cheyenne River Sioux Tribe Cultural P.O. Box 590 Preservation Office 98 S. Willow Street Eagle Butte, South Dakota 57625 Chickasaw Nation 6720B Rockledge Drive Suite 150 Bethesda, MD 20817 Chippewa Cree Tribe 9740 Upper Box Elder Road Box Elder, MT 59921 Choctaw Nation of Oklahoma P.O. Box 1210 Durant, IL 74702 Chuck Matzker 3 Otis Street Framingham, MA 01702 Cindy Li 5608 Persimmon Avenue Temple City, CA 91780 Cindy Russell 112 Foxwood Road Portola Valley, CA 94028 Case: 18-2063 Document: 00117357758 Page: 9 Date Filed: 10/25/2018 Entry ID: 6208710 Cities of San Antonio, Texas; Eugene, 1875 Eye Street, N.W. Oregon; Bowie, Maryland; Huntsville, Suite 700 Alabama; and Knoxville, Washington, DC 20006 Citizen Potawatomi Nation 1899 S. Gordon Cooper Shawnee, OK 74801 Citizens Against Government Waste 1100 Connecticut Avenue, N.W. Washington, DC 20036 City and County of San Francisco 1 Dr. Carlton B. Goodlett Place Room 234 San Francisco, CA 94102 City of Alexandria, Virginia; Arlington 11350 Random Hills Road County, Virginia; and Henrico County, Suite 800 Virginia Fairfax, VA 22301 City of Arlington, Texas P.O. Box 90231 Arlington, TX 76004 City of Austin, Texas PO Box 1088 Austin, TX 78767
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