Huawei Asks Fifth Circuit To Overturn FCC National Security Threat Designation Ban

On Monday, Huawei filed a petition for review with the Fifth Circuit, asking the appellate panel to overturn the Federal Communications Commission’s (FCC) ban that officially finalized Huawei as a national security threat, thus preventing companies from purchasing equipment from and working with the Chinese company.

The lawsuit comes after the Trump administration extended an executive order prohibiting companies from working with or using telecommunications equipment from companies, like Huawei, that are deemed a national security risk. FCC designated Huawei as a national security threat over the summer, began implementing the ban in July, and finalized the ban in December 2020, which Huawei argued was an overstep of the Commission’s authority. Additionally, Huawei previously appealed an FCC ban that would prevent American companies from using money from the federal Universal Service Fund to purchase Huawei equipment.

Huawei said it is seeking the appellate panel to review the Final Designation Order “on the grounds that it exceeds the FCC’s statutory authority; violates federal law and the Constitution; is arbitrary, capricious, and an abuse of discretion, and not supported by substantial evidence within the meaning of the Administrative Procedure Act…; was adopted through a process that failed to provide Petitioners with the procedural protections afforded by the constitution and the Administrative Procedure Act; and is otherwise contrary to law.”

According to the petition, “the order on review potentially impacts the financial interests of the telecommunications industry as a whole,” which include network operators that the FCC prevented from buying components made by Huawei.

Huawei is seeking for the court to hold that the Final Designation Order is unlawful, to vacate the Final Designation Order, and other relief.  Huawei is represented by Morgan, Lewis & Bockius as well as Jones Day.