Standard judicial deference to administrative agencies "provides no shield when an agency engages in a sustained pattern of hostility towards an entity it regulates and ignores basic principles of fairness and due process," tech industry interest groups said in an amicus brief Tuesday (docket 22-672) backing Northstar Wireless' Supreme Court cert petition. Northstar is challenging the appellate court's upholding the FCC's denial of bidding credits to Northstar (see 2301230007). The interest groups said Northstar fully disclosed its relationship with Dish Network before the AWS-3 auction, and the FCC never indicated anything was amiss when "it could have stopped the auction before the omelet was scrambled." The commission's actions raise "significant due process concerns" and the agency had no right under the Administrative Procedure Act to change its practices without notice "simply because [it] resented how 'slick lawyers' made the Commission look foolish," they told the Supreme Court. Behind the amicus brief are Phoenix Center, Computer & Communications Industry Association, the International Center for Law & Economics, New America's Open Technology Institute, Public Knowledge and Incompas. The FCC didn't comment Wednesday.
Hikvision, which sells surveillance cameras and other security gear, challenged 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. The order bans FCC authorization of gear from companies including Hikvision and other Chinese companies. Legal challenges were expected (see 2211230065). “Hikvision seeks review on the grounds that the Order exceeds the FCC’s jurisdiction and its statutory authority; violates the Equal Protection and Bill of Attainder Clauses of the United States Constitution; violates the Communications Act and the Administrative Procedure Act; and is arbitrary and capricious, an abuse of discretion, not supported by substantial evidence, and otherwise contrary to law,” said a pleading with the court. Hikvision asks the court to “hold unlawful, vacate, enjoin, and set aside the Order and grant such further relief as may be appropriate.” Hikvision USA is a California company wholly owned by Hangzhou Hikvision Digital Technology, the pleading said. It’s being represented by HWG.
The Supreme Court has granted the FCC's requested deadline extension for responding to Northstar Wireless' cert petition in its challenge of the 1st U.S. Circuit Court of Appeals holding up the agency's denial of AWS-3 bidding credits (see 2302140057). The commission's due date is March 23, per a docket 22-672 notation.
Citing a "heavy press of earlier assigned cases to the attorneys handling this matter," the FCC is asking the Supreme Court for the deadline for its response to Northstar Wireless' cert petition (see 2301230007) to be extended to March 23. Its response (docket 22-681) is currently due Feb. 21. The Dish Network designated entity is challenging the U.S. Court of Appeals for the D.C. Circuit's upholding the FCC's denial of AWS-3 auction bidding credits.
The 4th U.S. Circuit Court of Appeals docketed AT&T’s petition for review of the FCC’s order resolving AT&T’s pole attachment complaint against Duke Energy seeking just and reasonable pole attachment rates and refunds of past overpayments, said a docketing statement Friday (docket 22-2220). Duke also petitioned for review of the same FCC order, and the 4th Circuit consolidated the two cases as cross-appeals, said the statement. In the order on review, the FCC granted AT&T’s pole attachment complaint only in part, denying AT&T “the full relief it sought,” it said. The order requires AT&T to pay a pole attachment rate for use of space on Duke’s poles “that is substantially higher than the just, reasonable, and fully compensatory new telecom rate AT&T’s competitors pay for use of comparable space on the same utility poles,” it said.
Plaintiffs Qwest, Level 3 and Global Crossing participated with the eight defendant Peerless Network state affiliates in mediation Feb. 7 in Washington before Morgan Lewis partner Frank Lamancusa, a former DOJ and FCC attorney (see 2301260037), but were “unsuccessful in their efforts to resolve the matter,” said a joint status report Friday (docket 1:21-cv-03004) in U.S. District Court for Colorado on Denver. Though the parties participated in the mediation in good faith, they “do not believe there is a reasonable prospect of settlement any time in the near future,” said the report. 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 (see 2211030043). The defendants countersued in March, alleging the telecom companies used unfair and unsupported billing methods, to the detriment of the Peerless affiliates. As a result of the unsuccessful mediation, the parties now ask the court to refer the complex technical issues in the case to the FCC for the agency’s consideration (see 2210200050) under “the doctrine of primary jurisdiction,” and to stay the litigation, pending the outcome of the referral, it said. 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?
The 4th U.S. Circuit Appeals Court docketed as cross-appeals AT&T’s petition for review of the FCC’s pole attachment order from the D.C. Circuit (docket 23-1096) with Duke Energy’s petition for review in the 4th Circuit (docket 22-2220), said a clerk’s order Monday. Duke will be considered the petitioner for “purposes of the consolidated appeals and shall proceed first at briefing and at oral argument,” said the order. Duke’s opening brief is due March 13, and AT&T’s opening brief and response are due April 24, said an amended briefing schedule Monday. The FCC’s response is due June 8, it said. AT&T’s petition for review says the FCC's order denied it "the full relief it sought" by requiring it to "pay a substantially higher rate for use of Duke’s poles” than competitors pay (see 2301190043). Duke’s petition says parts of the order "exceed or are inconsistent with the FCC’s jurisdiction and statutory authority" and are "an abuse of discretion" (see 2211290053).
International Dark-Sky Association members face “a series of harms” from the FCC’s December order partially granting SpaceX's second-generation constellation application, said the nonprofit in the docketing statement Friday at the U.S. Court of Appeals for the D.C. Circuit for its petition to vacate the order (see 2301030014). Association members face “a diminishment in the enjoyment of the dark sky,” plus harm “to both professional and amateur astronomy,” it said. There also are “broader harms and risks to the environment” as a result of the order, including the “risks to migrating species that use stars for navigation,” it said.
A long-frozen lawsuit against the FCC by the League of California Cities could thaw this spring. The FCC doesn’t intend to seek further abeyance of the league’s lawsuit against the commission’s June 2020 wireless infrastructure declaratory ruling, the parties said in a Friday joint motion. A stay on the case that began March 19, 2021, and was extended multiple times expired Monday (see 2212160026). The FCC sought the extensions before because it lacked a fifth commissioner, which remains the case. The parties suggested a new schedule in which the FCC’s brief would be due March 1. Intervenors supporting the agency would file by March 8, cities’ reply briefs would be due March 31 and petitioner-side intervenors would file by April 7.
UPM Telecom and Digicel Haiti will file their next joint status report “promptly” after the FCC’s Wireline Competition Bureau “decides the deadline that is applicable to the parties' matter in dispute before the FCC,” or by April 14, whichever comes first, said a text-only order entered Thursday (docket 3:15-cv-00185) by U.S. District Judge Michael Simon. UPM’s Communications Act Section 208 complaint, due mid-February at the FCC, will encompass its counterclaims against Digicel Haiti that the court stayed in October for FCC review in October as Digicel’s fraud case against UPM progressed to a jury trial. UPM said it expects to file the Section 208 complaint around mid-February (see 2301260042).