The U.S. Court of Appeals for the D.C. Circuit construes the petition for an en banc rehearing submitted pro se by William Schwab on behalf of appellant Schwab Multimedia (see 2304030046) as including a motion for leave to file, said a clerk’s order Tuesday (docket 22-1016). The petition seeks a review of the three-judge panel’s unanimous March 3 rejection of Schwab's appeal of FCC decisions that led to the broadcaster losing its permit to build an AM station in Culver City, California. The court ordered Schwab and his company to show cause within 10 days why the motion for leave to file shouldn’t be denied because Schwab isn’t a licensed attorney, so he can’t represent his company, it said. Case law says “artificial entities may appear in the federal courts only through licensed counsel,” it said. Appellant Schwab Multimedia has counsel of record who may file a petition for rehearing en banc on the company’s behalf, it said.

U.S. District Judge Daniel Domenico for Colorado in Denver signed an order Friday (docket 1:21-cv-03004) referring three technical issues to the FCC under the doctrine of primary jurisdiction for resolution in the case brought by plaintiffs Qwest, Level 3 and Global Crossing against eight defendant Peerless Network state affiliates (see 2302100059). Domenico granted the referral “since adjudication of these issues implicates technical questions whose resolution Congress has entrusted to the FCC,” said his order. The underlying case is stayed, pending the outcome of the referral, which followed an unsuccessful attempt to resolve the dispute through mediation. The case involves negotiated interconnect agreements and the access tariffs associated with them. Qwest, Level 3 and Global Crossing sued the Peerless affiliates in November 2021, alleging they engaged in a scheme of avoiding mandatory switched access charges, thereby giving them an unfair competitive advantage in the toll-free marketplace. The defendants countersued in March 2022, alleging the telecom companies used unfair and unsupported billing methods, to the detriment of the Peerless affiliates. The issues for FCC referral: (1) Are toll-free calls always interexchange calls subject to tariffed switched access charges?; (2) Are “responsible organizations” (Resp Orgs) required to populate the SMS/800 database with their own carrier identification code, or the CIC of a carrier they have specifically engaged, or can a Resp Org populate the database with CIC 0110 and route toll-free calls to a regional bell operating company like Qwest for completion over local interconnection trunk groups?; and (3) If a Resp Org routes a toll-free call over a local interconnection trunk group utilizing CIC 0110, is the Resp Org required to pay the regional Bell operating company its tariffed switched access charges depending on the end points of the call? Domenico ordered the parties to file a notice of the FCC’s resolution no more than 14 days after its publication.

The U.S. Merit Systems Protection Board (MSPB) denied the petitions for review of its initial decisions dismissing the appeal of Stanley Scheiner’s termination from the FCC and for his individual right of action (IRA) appeal, affirming those decisions as final, said its order Thursday (dockets DC-0752-14-0744-I-3 and DC-1221-17-0037-W-1). The board concluded Scheiner didn’t establish any basis under Title 5 of the Code of Federal Regulations (Section 1201.115) for granting his petitions for review, it said. Scheiner, a former FCC attorney adviser, alleges the charges were unsubstantiated when he was fired in March 2014 for excessive absences or failure to properly request leave. He also alleges the FCC acted in retaliation for his equal employment opportunity activity, and that the termination violated his rights under the Family and Medical Leave Act. When Scheiner ultimately reached a settlement with the FCC resolving both his termination and IRA appeals, an MSPB administrative judge dismissed those appeals as settled, said the order. In his petitions for review, Scheiner doesn’t allege, “nor do we discern any basis upon which to find,” the settlement agreement he reached with the FCC was unlawful, it said. “Neither does the appellant suggest, nor the record show, that he entered into the agreement involuntarily,” it said. Scheiner hasn’t shown the FCC acted fraudulently on the settlement agreement, nor has he shown the parties “operated under mutual mistake sufficient to justify striking the agreement as invalid,” it said.

Dahua Technology USA filed a statement of the issues as it challenges in the U.S. Court of Appeals for the D.C. Circuit a November FCC order clamping down on equipment from Chinese companies, preventing the sale of yet-to-be authorized equipment in the U.S. (see 2211230065). The Dahua challenge was consolidated with one by Hikvision (see 2302170057) in docket 23-1032 (see 2303200023). Dahua questioned whether the FCC exceeded its authority, under Title III of the Communications Act, for “regulation of interference potential of devices capable of emitting radio frequency energy” and under the Secure Equipment Act “by regulating equipment not used in the provision of advanced telecommunications capability,” said a Thursday filing. Dahua questioned whether the FCC’s “interpretation of the term ‘critical infrastructure’ is arbitrary and capricious, unreasonably broad, plainly erroneous, or inconsistent with law.”

The U.S. Court of Appeals for the D.C. Circuit should reverse the FCC’s hearing designation order (HDO) and require the agency to grant the Standard/Tegna applications rather than remand the matter to the commission, said the broadcast parties to the deal in an appellant brief filed in docket 10-83 Thursday. “Given that only 53 days remain to complete the transaction, there is reason to fear that the FCC could run out the clock on remand to consummate its pocket veto of the applications,” said Standard General, Tegna, and Cox Media Group. The evidence in favor of granting the deal is “overwhelming,” so there's “thus no reason to hold a hearing,” the broadcasters said. “There is no further factfinding or deliberation the agency could conduct that would shed additional light on the transactions.” The brief again raises the broadcasters’ previous arguments on the FCC outreaching its authority by issuing the HDO based on questions concerning retransmission consent and job losses, and on the constitutionality of administrative law judges. ALJ Jane Halprin failed to comply with the HDO because she hasn’t set a schedule with a set date for the resolution of the FCC hearing proceeding, the broadcasters said. A status conference to determine the schedule is set for April 26. “The proper remedy is reversal, not mere remand,” the broadcasters said.

The U.S. Court of Appeals for the D.C. Circuit should dismiss the Standard/Tegna appeal because it doesn’t have jurisdiction over the case, the FCC said in a motion to dismiss and response filed Thursday. “This Court lacks jurisdiction over the Hearing Designation Order because it does not constitute final Commission action,” the agency said. Similar arguments were made by the deal's union and public interest group opponents. The court on Thursday approved those opponents as intervenors in the case. The lack of jurisdiction is also why “there is no good reason for the Court to consolidate or expedite the appeal,” the FCC said. The HDO isn’t a final order because it was issued at the bureau level rather than after a commissioners' vote, the FCC said. The HDO also doesn’t come to any conclusions -- unlike most HDOs, the Standard/Tegna order doesn’t require the FCC’s administrative law judge to issue a decision, it only directs the ALJ to hold an inquiry and then report back to the Media Bureau. “Such ‘merely investigatory’ agency action is ‘not final agency action’ because ‘the agency has not yet made any determination or issued any order imposing any obligation,’” said the FCC. The broadcasters haven’t provided any evidence as to why they can’t extend the financing on their transaction past the May 22 final extension date, said intervenors Common Cause, the United Church of Christ Media Justice Ministry, and the Communications Workers of America's NewsGuild and National Association of Broadcast Engineers and Technicians sectors. The court should “disregard” the argument that financing will be lost because allowing it could set a “dangerous precedent,” the intervenors said. “Going forward, applicants before the FCC and other agencies could simply set arbitrary deadlines for agency action.” May 22 “is a deadline of appellants’ own making,” said the FCC. “At this juncture, any decision by appellants not to proceed with the proposed transaction would be their own private business decision, not the result of a regulatory directive from the agency.” The intervenors also faulted Standard/Tegna for hurrying the court and FCC to act while asking the FCC to block union attorneys from accessing information on the case. "Appellants have not come to Court with clean hands,” said the intervenor filing.

The U.S. District Court for the District of Columbia dismissed additional False Claims Act actions brought by lawyers Mark O’Connor and Sara Leibman, who allege defendants fraudulently said Frequency Advantage was a “very small business” qualifying for “designated entity” status and a bidding discount in FCC auctions. The case was brought against UScellular and other defendants including King Street, Carroll Wireless and Barat Wireless. The court earlier dismissed other complaints (see 2303100068). The latest complaints dismissed, ECF Nos. 148 and 149, involve three FCC spectrum auctions in 2004, 2006 and 2007. The court said a 2008 FCA complaint precludes the later complaint. “Because the Amended Complaint is premised on ‘substantially the same allegations or transactions’ that have already been publicly disclosed, Plaintiffs-Relators' suit must be dismissed unless they qualify as an ‘original source’ by obtaining and sharing ‘knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions,’ in which case the public disclosure bar would not apply,” the court said. Plaintiffs repeatedly cite a U.S. Cellular-King Street network sharing agreement from 2011, the court said: “They rely chiefly on one nonpublic document, but it cannot bear the weight they place on it. … That alleged relationship between the entities at most supports the claim that Defendants continued the substantially similar, and already disclosed, original fraud. It therefore cannot be a material addition to the publicly disclosed information.”

The 5th Circuit U.S. Court of Appeals "erroneously upheld the USF revenue-raising mechanism" in its ruling against Consumers' Research petition on the FCC's Q1 2022 contribution factor, the group told the 11th Circuit (see 2303240049). The group challenged the Q4 2022 factor in the 11th Circuit. The court "never addressed" the group's argument about the nondelegation doctrine's intelligible principle "in the context of revenue-raising," Consumers' Research said in a letter posted Monday (docket 22-13315). The group also said the court "found no private nondelegation violation despite the FCC never bothering to issue a separate approval of [the Universal Service Administrative Co.'s] quarterly proposal and having only 'a small window' for review."

Core Communications started the legal fight to recover $11.4 million in unpaid charges for access services it provided to AT&T, so Core “must show that it provided those services as set forth in the governing tariffs,” said a memorandum signed Thursday by U.S. District Judge Joshua Wolson for Eastern Pennsylvania in Philadelphia. That means Core “bears the burden of demonstrating that its transmission of the toll-free robocalls at issue in this case” constitutes switched access service, as defined in its tariffs, it said. The two sides have engaged in finger-pointing for months over which bears the burden of showing that the calls at issue were legitimate and not improper robocalls (see 2212280001). AT&T refused to pay Core for the access services, claiming nearly 100% of the calls that CoreTel affiliates in Delaware, New Jersey, Virginia and West Virginia connected were fraudulent. But Core says AT&T’s claims of fraud “are at most an affirmative defense for which AT&T bears the burden of proof in this litigation.” The language in the memorandum suggested Wolson’s patience was beginning to wear thin from the bickering between the two sides. “This case involves a large amount of data over a significant period of time,” and it seems neither party “wants to bear the burden of having to grapple with all of it,” said the memorandum. Though AT&T “repeats the refrain” that these calls are illegitimate, fraudulent or otherwise improper, “it need not prove the calls’ illegitimacy to argue that Core cannot satisfy each element of its breach of tariff claims,” said the judge. But to the extent that AT&T “also intends to defend itself by pointing to Core’s alleged failures to police 8YY traffic” in violation of various FCC orders and regulations, then AT&T “must bear the burden of establishing that affirmative defense,” said the memorandum.

Northstar Wireless isn't challenging the standards applied by the appellate court or that court's conclusion that Northstar was de facto controlled by Dish Network under FCC rules, the agency told the U.S. Supreme Court Thursday in a docket 22-672 reply to Northstar's cert petition (see 2301230007). It said Northsrtar's contention -- that it didn't get fair notice of the standards the FCC would apply in evaluating its renegotiated agreements with Dish or a meaningful opportunity to cure the previously identified de facto control deficiencies -- is "factbound" and lacks merit, the agency said. The FCC said since Northstar exercised a put right that requires Dish to buy it, and the transfer of control of licenses to Dish is pending. If that gets approved, the FCC said, Dish will have undisputed de jure control of Northstar's license, mooting the question of whether Dish already had de facto control, it said.