Dish Network challenged the FCC’s determination in its Dec. 1 order that SpaceX’s Gen2 service won’t cause harmful interference to other satellite systems, but the FCC “properly adhered to its rules when it accepted SpaceX’s certification of compliance with applicable power limits,” said the commission’s final brief in the challenge Wednesday (docket 23-1001) at the U.S. Court of Appeals for the D.C. Circuit. The FCC “reasonably concluded” that SpaceX’s certification, combined with other conditions adopted in the order, “provided adequate safeguards against harmful interference,” it said. On the International Dark-Sky Association challenge to the order on grounds that the National Environmental Policy Act required the FCC to do additional environmental review of the satellites covered, the commission “reasonably concluded that the record did not show potentially significant effects requiring review in an environmental assessment,” it said. The association contends this determination was in error, but its disagreement with the FCC’s determination doesn’t “undermine the reasonableness” of the order, which should be affirmed, it said. Though the commission argues no environmental assessment was required, its reliance on mitigating factors confirms that significant environmental impact may result, said the association’s reply brief Wednesday. The FCC can’t “retroactively define” where the line of significance is “and instead is tied to its own ‘may’ standard.” it said.

The U.S. Appeals Court for the D.C. Circuit denied the petition of Gerald Parks, licensee of AM station WEKC in Williamsburg, Kentucky, for mandamus relief, said the three-judge panel’s per curiam order Thursday (docket 23-1078). Petitioner Parks hasn’t shown that Section 307 of the Communications Act “clearly and indisputably requires” the FCC “to continue in effect his license despite his failure to timely file a renewal application in 2020,” said the order. Parks asserted the FCC wrongly argued that the D.C. Circuit lacked jurisdiction to grant Parks his requested mandamus relief because the Media Bureau canceled his WEKC broadcast license in August 2020 (see 2307120046). Parks contended his license remains in effect while his 2012 renewal application remains pending.

Dish Network’s satellite TV service, which uses 500 MHz of spectrum in the 12 GHz band, can be “jammed” if another user “transmits into the same frequencies in excess of certain power limits,” as SpaceX’s constellation does, said Dish’s final opening brief Tuesday (docket 23-1001) in the U.S. Court of Appeals for the D.C. Circuit in its challenge of the FCC’s Dec. 1 second-generation SpaceX authorization order (see 2301060037). Avoiding interference is one of the most important congressional “directives” to the FCC, said Dish. The case is about whether the FCC “can reasonably refuse to comply with this directive by failing to evaluate SpaceX’s compliance with the power limits meant to protect satellite television,” it said. That’s even when the FCC “appears to agree” with Dish’s showing that SpaceX’s “on-the-record method for demonstrating compliance with the limits is not enough,” it said. The case is also about whether the agency “erred in allowing SpaceX to keep its ultimate showing of purported compliance with these limits outside the record of the proceeding” and unavailable to Dish “until after the agency made its decision,” it said. Dish also filed a final reply brief Tuesday in the D.C. Circuit, repeating many of the same arguments it asserted in the final opening brief. The FCC and SpaceX briefs at the D.C. Circuit serve only to confirm the "arbitrariness" of the commission's Dec. 1 order, said Dish's reply. The FCC and SpaceX try to "will away" the order’s "intractable problems" by "retroactively attempting to repair" it in their briefs, it said.

Motorola Solutions this week defended an FCC order last year clamping down on gear from Chinese companies, preventing the sale of yet-to-be authorized equipment in the U.S. (see 2211230065), against legal challenges brought by Dahua USA and Hikvision USA. The case is before U.S. Court of Appeals for the D.C. Circuit (docket 23-1032), and the government defended the order last week (see 2308010047). “Congress” and the FCC “placed Petitioners' video-surveillance equipment that meets certain criteria on the Covered List for one simple reason -- it endangers national security,” Motorola said in a Monday filing: “In a series of statutes and orders, the federal government has with one voice determined that this equipment should not connect with government networks, should not be subsidized with federal dollars, and -- in the Order under review -- should not be authorized for use in connection with American broadband networks.” The case “does not require this Court to guess at Congress's intent or speculate on the scope of the Commission's authority,” the company said. In approving the Secure Equipment Act, Congress “ratified and endorsed the very FCC actions Petitioners challenge, including the placement of their equipment on the Covered List.” Motorola also said the challenge was untimely and should be rejected as such, since the case falls under the Hobbs Act, which carries a 60-day limitations period on filing an appeal. “The arguments advanced in Argument Sections I and II of Petitioners' brief are barred because they challenge the 2020 order that included their video equipment on the Covered List,” the company said. The FCC also reasonably interpreted the 2019 Secure Networks Act, Motorola said: “The FCC reasonably determined that ‘communications equipment or service’ encompasses ‘all equipment or services used in fixed and mobile broadband networks, provided they include or use electronic components.’ … As the FCC observes, ‘[P]etitioners' video cameras and recorders are ... essential to ... the transmission of video information over the internet for video surveillance.’" The lead lawyer on the amicus brief is Wiley’s Thomas Johnson, former FCC general counsel.

The FCC doesn’t plan to conclude the 2022 quadrennial review before finishing the 2018 iteration, the agency said Monday in an opposition filing in the U.S. Court of Appeals for the D.C. Circuit. The FCC “has no intention of combining the Quadrennial Reviews for 2018 and 2022; nor does it plan to allow the 2022 review to ‘cut in front of’ the 2018 review,” the filing said. The FCC “plans to complete the 2018 review of its ownership rules before it concludes its independent 2022 review of the rules,” said the agency. “If NAB’s sole purpose in seeking mandamus is to prevent the FCC from combining the 2018 and 2022 reviews, mandamus is not necessary to achieve that outcome.” The agency was responding to NAB’s mandamus request that the court force the agency to issue a 2018 QR, which NAB filed after the FCC sought comment on the 2022 QR without concluding the previous iteration (see 2307070057). The FCC’s failure to conclude the 2018 QR is “by no measure egregious,” considering the multiyear litigation against the original 2018 QR order that went all the way to the U.S. Supreme Court, said the agency. The SCOTUS decision upholding the FCC was issued in 2021, and the FCC had to refresh the record after the ruling, the agency said. That record refresh drew “almost 1000 pages of new comments and attachments,” and ended less than two years ago, the FCC said. QR proceedings are often contentious and complicated, and the agency has only four commissioners, the filing said. “For the past twenty years, each of the Commission’s orders completing Section 202(h) review has been approved by a 3-2 vote, with two Commissioners issuing lengthy dissenting statements,” the FCC said. NAB is “mistaken” in asserting that QRs are meant to be both started and completed every four years, the FCC said. “Congress did not identify a specific deadline for commission action,” the filing said. “NAB’s claims that the Commission has unduly delayed completion of past Quadrennial Reviews is irrelevant to its claim in this case that there has been undue delay in the 2018 Quadrennial Review,” the filing said. Granting NAB’s mandamus request “would intrude on the FCC’s discretion to order its priorities,” the FCC said. “The FCC is saying, somewhat ironically, if the NAB quits suing us we could finish media ownership, but we shouldn't be made to have to do it,” said University of Minnesota professor Christopher Terry. He said however the agency resolves the two QRs, the matter is likely to lead to further litigation.

Free market-oriented groups filed an amicus brief in support of Consumers' Research's challenge of the FCC's method for funding the USF, the subject of an upcoming en banc rehearing of the group’s challenge of the USF and how it’s funded by the FCC (see 2306290074). “Only Congress has the power to lay and to collect taxes for the universal welfare of all Americans. Regardless of the public policy that it seeks to advance, Congress cannot delegate this power to the FCC or any other executive branch agency,” said an amicus brief by the Competitive Enterprise Institute, the Free State Foundation and former Commissioner Harold Furchtgott-Roth, among others. Consumers’ Research argued the statutory framework for the fund unconstitutionally delegates legislative or taxing authority, and the FCC’s use of the Universal Service Administrative Co. is an impermissible delegation of regulatory authority to a private company. A three-judge panel ruled against Consumers' Research in March (see 2303240049). Said the filing Friday in case 22-60008: “The Constitution does not permit Congress to circumvent the legislative process by allowing an independent agency (guided by a private company owned by an industry trade group) to raise and to spend however much money it wants every quarter for ‘universal service’ at the expense of every American who pays a monthly phone bill. Elected representatives of the people, not the [FCC], must be responsible for making the difficult decisions to raise the revenue that funds this program.”

The 7th U.S. Circuit Court of Appeals reversed and remanded for trial a lower court's ruling that Wisconsin Bell charged schools and libraries "more than was allowed" under the FCC's E-rate program. Relator Todd Heath initially filed the challenged Wisconsin Bell under the False Claims Act, showing "enough specific evidence of discriminatory pricing to allow a reasonable jury to find that Wisconsin Bell ... charged specific schools and libraries more than it charged similarly situated customers," the appellate court said in a Wednesday opinion in case 22-1515.

Contrary to SpaceX arguments about lacking standing, the International Dark-Sky Association's organizational interests "are clearly pertinent to the impacts of launch and reentry," the advocacy group told the U.S. Court of Appeals for the D.C. Circuit Wednesday. In a docket 22-1337 reply brief, the appellant challenged arguments that the National Environmental Policy Act doesn't apply to outer space, saying NEPA was established so federal agencies would recognize the worldwide and long-range character of environmental problems, and Congress would have jurisdiction and control over the objects and people it sends into space. Dark-Sky and Dish Network are separately challenging the FCC's 2022 partial authorization of SpaceX's second-generation satellite constellation (see 2301040007). In its reply brief, Dark-Sky said the FCC claims no environmental assessment was required, but its and SpaceX's reliance on mitigating factors is proof there could be significant environmental impact, and if there's uncertainty about their extent, an environmental assessment is warranted.

The FCC may be violating the Administrative Procedure Act by failing to issue 2.5 GHz licenses to T-Mobile, which it won in a 2022 auction, Free State Foundation Director-Communications Policy Studies Seth Cooper blogged Thursday. The FCC faced growing pressure to award the licenses but maintains it doesn’t have the authority to do so following the March expiration of its auction authority (see 2307070042). Section 706(1) of the APA “authorizes courts to ‘compel agency action unlawfully withheld or unreasonably delayed,’” Cooper wrote, but he said he’s not arguing litigation is necessary to force the FCC to act. “T-Mobile reasonably relied to its detriment on the Commission's rules, the 2019 [2.5 GHz] order, and the agency's auction procedures,” he said: “T-Mobile is materially prejudiced by the agency's indefinite withholding of licenses worth $304 million, as it is being denied the benefit of using the spectrum to offer 5G services to consumers. Thus, all the elements for mandamus relief based on a claim of agency action unlawfully withheld or unreasonably delayed are present.”

U.S. District Judge Richard Bennett for Maryland in Baltimore, in a July 21 memorandum opinion, granted the motion of three colleges to dismiss for lack of subject-matter jurisdiction a complaint by Bloosurf, a wireless internet provider to low-income, rural communities on Maryland’s Eastern Shore. The company sued to block the schools from selling their FCC-approved educational broadcast service licenses to T-Mobile, a direct competitor. The judge denied as moot Bloosurf’s motion for a preliminary injunction. The dismissal is without prejudice, with leave to amend the complaint by Aug. 21. The “overriding issue” in the motion to dismiss from the University of Maryland Eastern Shore, Wor-Wic Community College and Salisbury University is whether Bloosurf’s claims for injunctive and declaratory relief “arise under federal law,” said the opinion. Bloosurf doesn’t precisely indicate what cause of action it asserts as the basis for its requests for injunctive and declaratory relief, and its complaint raises contractual claims but doesn’t “present a federal cause of action,” it said. Throughout the complaint, Bloosurf describes the case as an effort to prevent the termination of the EBS lease, and to withhold consent to the T-Mobile sale, it said. “To the extent Bloosurf invokes FCC regulations, it does so only as one of the grounds on which it withheld its consent to the transfer and continues to object to the proposed sale, not as an independent cause of action,” it said. The complaint is “best understood” as seeking declaratory and injunctive relief on the basis that the termination of the EBS lease and the sale of the universities’ underlying licenses would violate the lease, it said: “These claims sound in contract, a quintessential field of state law.” Bloosurf argues the federal issue is the “gravamen of the case,” but its complaint “belies this broad assertion,” said the opinion. A “holistic reading” of the complaint suggests Bloosurf “is chiefly concerned about the effect the proposed sale would have on its network, its contracts, and its business,” it said. “In sum,” Bloosurf’s challenge to the proposed sale doesn’t necessarily depend on resolution of a substantial question of federal law, it said. As Bloosurf’s claims for injunctive and declaratory relief don’t necessarily raise issues of federal law, “this case falls outside the ambit of this court’s subject matter jurisdiction,” it said.