The FCC’s analysis of RF interference “was not arbitrary or capricious,” said SpaceX as intervenor in a response brief (docket 23-1001) in the U.S. Court of Appeals for the D.C. Circuit Tuesday. The appeals court should affirm the FCC’s order partially approving SpaceX's second-generation satellite constellation, said the brief, in response to the International Dark-Sky Association and Dish Network appellant briefs (see 2304170005) challenging the FCC’s decision. The commission failed to sufficiently deal with arguments about the environmental threat it poses and to evaluate SpaceX's compliance with the power limits meant to protect direct broadcast satellite services, said Dark-Sky and Dish Network in their briefs. The FCC was not required to consider Dish’s studies that used a different method for assessing RF interference than required by federal regulations, which incorporate power limits that the International Telecommunications Union (ITU) sets in its capacity as the U.N. agency responsible for addressing signal interference internationally, said SpaceX. The FCC “reasonably granted” SpaceX a waiver of the requirement to obtain ITU approval before beginning operations, citing the international agency’s “processing delays, while relying on SpaceX’s certification of compliance with ITU standards as confirmed by ITU-approved software,” said the brief. Dish’s “reliance on new studies -- all of which take liberties with the ITU-approved software or the relevant inputs -- suffers from the same basic problems, while its subdelegation argument runs headlong into circuit precedent upholding agency decisions to incorporate into federal law standards developed by other expert bodies,” the brief said. Dark-Sky’s appeal, meanwhile, should be dismissed because it makes the “novel claim” that the National Environmental Policy Act (NEPA) required FAA preparation of an environmental assessment, said the brief. The D.C. circuit court didn't resolve that issue in Viasat v. FCC “because the NEPA challengers lacked standing,” it said. Dark-Sky’s appeal should be dismissed for the same reason, “or at least substantially narrowed to issues germane to its organizational purpose,” it said, citing light pollution vs. atmospheric effects. “Both appeals are little more than collateral attacks on the Commission’s regulatory framework for authorizing satellite operations.”

The FCC's 2022 approval of SpaceX's second-generation constellation was reasonable in how it treated harmful interference and National Environmental Policy Act considerations, the agency told the U.S. Court of Appeals for the D.C. Circuit Tuesday in an appellee brief (docket 22-1337). Dish Network and the International Dark Sky Association challenged the approval in a consolidated action (see 2304170005). The appellee agency told the court it "reasonably properly adhered to its rules" in accepting SpaceX's certification of compliance with applicable power limits and "reasonably concluded" SpaceX's certification of compliance with the ITU’s equivalent power flux density limits and conditions placed on it provided sufficient harmful interference protection. It said it "reasonably concluded" there wasn't evidence in the record of potentially significant effects that required an environmental assessment -- particularly given the voluntary commitments of SpaceX and the conditions on it. Dish argues the FCC should have considered a Dish-commissioned study that supposedly shows SpaceX not complying with ITU power limits, but the agency said its rules only require that SpaceX certify its compliance, which SpaceX did.The commission said an environmental assessment becomes required only if there's evidence SpaceX's Starlink satellites would have "significant" effect on the night sky, "which the Commission reasonably found not to be the case here."

Two Kentucky men pled guilty to a "decade long scheme to defraud" the FCC's E-rate program, said a DOJ news release Tuesday. Charles Jones pled guilty to conspiracy to commit wire fraud and Mark Whitaker pled guilty to misprision on wire fraud. Evidence presented by U.S. Attorney Kevin Ritz showed Jones "paid kickbacks to an E-rate consultant working with the Missouri and Tennessee schools involved in this case." Evidence presented also showed Whitaker "made false statements and submitted fabricated documents" about copays and bidding process. "Protection of federal grant programs that provide needed services and equipment to our schools in West Tennessee is a top priority of this office," Ritz said.

The FCC issued a $5.1 million fine Tuesday against John Burkman, Jacob Wohl and J.M. Burkman & Associates for allegedly making 1,141 unlawful robocalls. They were charged in federal court in New York with making threatening and intimidating robocalls to suppress Black citizens' mail-in votes in the 2020 election (see 2303290031). “After evaluating the evidence, including Respondents’ response, we find that Respondents made robocalls to wireless numbers without the recipients’ prior express consent, absent an emergency purpose, in violation of the Telephone Consumer Protection Act,” the FCC said. U.S. District Judge Victor Marrero for Southern New York previously granted summary judgment against Wohl and Burkman (see 2303090003), and a one-week jury trial is scheduled to begin Aug. 7 on the scope of relief sought (see 2306050029).

Tanana Chiefs Conference withdrew its writ of mandamus petition in the U.S. Appeals Court for the D.C. Circuit for review of an FCC Wireline Bureau order denying its request to allow three rural healthcare program support requests after the application filing deadline. It noted that the bureau issued an order last month granting Tanana Chiefs Conference's application for review, per a motion posted Monday in case 23-1090. The bureau waived the application filing deadline for the three FY 2016 requests at issue and maintained its requirement to prorate the organization's funding commitments.

Arguments by AT&T, T-Mobile and Vermont National Telephone against Northstar Wireless' cert petition (see 2305230048) are "long on rhetoric and short on reasons" to let stand the FCC denying Northstar small business credits in the AWS-3 auction, Northstar told the Supreme Court in a reply Monday (docket 22-672). It said small businesses have always teamed up with deep-pocket larger entities in auctions, and the FCC now denying credits for Northstar's partnering with Dish Network means Northstar suffered huge financial harm "for financial arrangements modeled on and materially indistinct from arrangements respondents employed and the FCC approved repeatedly in the past." It said the U.S. Court of Appeals for the D.C. Circuit erroneously backing the FCC, and what that decision says about the need for agencies to provide fair notice and meaningful cure opportunities, "has outsized consequences given the number of agency actions that court reviews."

The FCC’s $518,000 enforcement action against Gray Television over the broadcasters’ buy of a top-four network affiliation (see 2305240068) could have implications for future FCC proceedings and other federal agencies, said NAB and the Free State Foundation (FSF) in amicus briefs filed with the 11th U.S. Circuit Court of Appeals Thursday in docket 22-14274. “Unless the Court vacates the FCC’s forfeiture order, this case could serve as a roadmap for agencies to flout due process and to abridge free speech through the arbitrary use of authority,” said FSF. The agency’s forfeiture order argued Gray violated a rule designed to prevent stations from swapping network affiliations in the same market to create new top-four combinations, but that rule had never before been interpreted in that way, and the FCC gave no prior notice its interpretation had changed, said the FSF brief. “The responsibility does not fall on private parties to guess what the agency might deem to pass muster under yet-to-be determined extensions of existing regulatory policy.” The FCC doesn’t prevent stations from creating new top-four combinations by reaching network affiliation deals with the networks, NAB said. “It makes no sense to distinguish between executing an affiliation agreement with the network, and being assigned a network affiliation agreement by another station (especially when network affiliation contracts routinely require that networks consent to assignments),” NAB said. Both NAB and FSF connected the FCC’s forfeiture order to the agency’s delayed quadrennial review of broadcast regulations. The FCC “erred in broadly applying its ownership rules,” when “the agency steadfastly refuses to complete on a timely basis the periodic reviews that Congress has mandated,” FSF said. The FCC’s interpretation of its authority over content could have implications in the that quadrennial review because MVPDs have called on the agency to limit broadcasters using multicast channels and low-power TV stations to create top-four combinations. “Given the potential consequences in other regulatory contexts, it is important that this Court in this case enforce the statutory and constitutional limits on the Commission’s power to regulate broadcast programming,” NAB said.

The 6th U.S. Circuit Court of Appeals denied Consumers' Research's petition for an en banc review of an opinion denying its challenge of the FCC's USF 2021 Q4 contribution factor (see 2305100063). No judge sought a vote on the suggestion for rehearing, said an order filed Tuesday in case 21-3886.

Dish Network designated entity Northstar Wireless' legal fight isn't about a supposed uncertainty in FCC spectrum auction rules but with the agency's rationale for denying it small business auction credits, AT&T, T-Mobile and Vermont National Telephone told the Supreme Court Monday in a private respondents brief in opposition (docket 22-672). That makes Northstar's cert petition (see 2301230007) a case-specific challenge to the reasonableness of the FCC action, and has nothing to do with due process requirements, the telcos said. Northstar's challenge "is not only fact bound but meritless" since the FCC "quite reasonably" denied the small business bidding credits due to Northstar acting as a front for big business Dish, the respondents said. They said Northstar gave no effective response to the fact the whole case could be rendered moot by Northstar last year exercising its put option to sell itself to Dish.

TechFreedom backed Consumers' Research's request for a rehearing of its challenge of the FCC's USF 2021 Q4 contribution factor in the 6th U.S. Circuit Court of Appeals (see 2305100063). "The FCC’s subdelegation of authority to [the Universal Service Administrative Co.] is unconstitutional," the group said in an amicus brief filed Monday in case 21-3886, saying the commission "passed the management of the USF to a private entity" without Congress's permission. "Private delegation is bad enough," TechFreedom said: "Private delegation absent congressional approval is intolerable."