Duke Energy’s opening brief is due April 17 in its 4th U.S. Circuit Court of Appeals petition for review of the FCC’s November order denying its petition for reconsideration in a pole attachment rate dispute with AT&T (see 2211290053), said a clerk’s order (docket 22-2220) Wednesday. The FCC and intervenor AT&T's combined response is due May 17, said the order. Duke alleges parts of the order "exceed or are inconsistent with the FCC’s jurisdiction and statutory authority" and are "an abuse of discretion," said its Nov. 28 petition.

UPM Telecom expects to file by mid-February at the FCC a Communications Act Section 208 complaint, summarizing its counterclaims against Digicel Haiti, said a joint status report Tuesday (docket 3:15-cv-00185) at the U.S. District Court for Oregon in Portland. The court stayed UPM's counterclaims for FCC review in October as Digicel’s fraud case against UPM progressed to a jury trial. Central to UPM’s counterclaims for the FCC to determine, say court papers, is whether Digicel, as a foreign telecommunications carrier, offered a common-carrier service to UPM that was subject to provisions of the Communications Act. If so, say the court papers, the FCC needs to determine whether Digicel’s termination of that service due to fraud constitutes an unjust and unreasonable practice and amounts to unreasonable discrimination under the statute. Digicel’s answer to UPM’s complaint will be due 30 days after filing, and UPM’s reply will be due 10 days after that, said the joint status report. An eight-member jury, deliberating for a day after a six-day trial, awarded Digicel $3.6 million in damages in November after finding UPM liable for running a “bypass” scheme that defrauded the Haitian mobile communications network provider and deprived it of the proper termination fees (see 2211220049).

Duke Energy wants the 4th U.S. Circuit Appeals Court to temporarily suspend its briefing schedule in Duke’s petition for review of the FCC’s November order resolving its pole attachment dispute with AT&T, said its unopposed motion Tuesday (docket 22-2220). AT&T’s petition for review in the D.C. Circuit said 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 4th Circuit petition said parts of the order "exceed or are inconsistent with the FCC’s jurisdiction and statutory authority" and are "an abuse of discretion" (see 2211290053). The D.C. Circuit is expected to grant the FCC’s motion “in short order” and transfer AT&T’s petition to the 4th Circuit for consolidation with Duke’s petition, it said. Suspending the briefing order “will conserve party and judicial resources” while the 4th Circuit determines whether consolidation of the Duke Energy and AT&T petitions is “appropriate and, if so, how the consolidation impacts the current briefing schedule,” said Duke. Under the current briefing schedule, Feb. 15 is Duke’s deadline for filing its opening brief in its 4th Circuit petition.

Due process at its most basic would have the FCC give fair notice to the Dish Network designated entities about what was forbidden or required in the AWS-3 auction, DE Northstar Wireless said in a cert petition last week (docket 22-672) urging SCOTUS to "reaffirm bedrock principles of fair notice and due process." Northstar 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 for the DEs (see 2206210065). The FCC's de facto control rules "are anything but clear [and] do not even purport to provide any clear ex ante guidance," it said. With the AWS-3 auction, the agency dropped its traditional practice of giving a meaningful opportunity to fix specifically identified deficiencies in a small-business/investor arrangement, "replacing it with a meaningless opportunity to shoot at an unidentified target," Northstar said. It said the FCC "gave petitioner only a few perfunctory meetings -- devoid of information from the Commission -- and a similarly meaningless opportunity to attempt to cure supposed defects it refused to identify with any real specificity." The agency didn't comment Monday.

Wilkinson Barker’s Jennifer Tatel represents CCA, NTCA and USTelecom, but not CTIA, in court challenges to the FCC’s USF program (see 2301180054).

AT&T asked the U.S. Court of Appeals for the D.C. Circuit to review the FCC's November order resolving a pole attachment complaint the carrier filed against Duke Energy. In its petition (case 23-1010), AT&T said 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 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 asked the court to vacate the order and "provide such additional relief as may be just and proper." The companies are also seeking reconsideration of the order in the 4th U.S. Circuit Court of Appeals (see 2212290050).

The Jan. 15 deadline for Dish Network's designated entities Northstar Wireless and SNR Wireless to file a cert petition challenging an appellate court's upholding of the FCC's denial of AWS-3 auction bidding credits for the DEs (see 2301120010) has passed with no petition filed in SCOTUS docket 22A401. Counsel for the DEs didn't comment Tuesday.

SpaceX filed a motion for leave to intervene in support of the FCC’s defense of its order partially authorizing SpaceX's second-generation satellite constellation (see 2301060037), said its motion Thursday (docket 23-1001) at the U.S. Court of Appeals for the D.C. Circuit. As the applicant and “prevailing party” before the commission, SpaceX has a “direct interest” in defending the order before the D.C. Circuit. Dish Network’s appeal argues the order is unlawful and should be set aside, partially because the commission ignored “unrebutted expert studies” submitted by Dish showing SpaceX’s second-gen system would significantly exceed the applicable power limits adopted by the FCC for the 12 GHz band and would risk causing unacceptable interference for millions of Dish satellite TV customers. International Dark-Sky Association is also appealing the order.

The U.S. Court of Appeals for the D.C. Circuit unsealed and released its full December ruling upholding the FCC's revocation of China Telecom Americas’ domestic and international authorities (see 2111150025). The government supported unsealing the 24-page decision Thursday, but the provider opposed that (see 2301090051). “China Telecom argues that the Revocation Order is arbitrary, capricious, and unsupported by substantial evidence,” the unsealed opinion said: “It dismisses as speculative the Commission’s concern that China Telecom will be used as a vector of cyberwarfare against the United States and disputes the Commission’s conclusion that its conduct constituted breaches of the Letter of Assurances.” The court found “no merit in China Telecom’s claims.” The opinion, by Judge Harry Edwards, fully upheld the FCC (docket 21-5215). He was joined by Judges Karen Henderson and Greg Katsas. “The Commission’s determinations that China Telecom poses a national security risk and breached its Letter of Assurances are supported by reasoned decisionmaking and substantial evidence in the unclassified record,” the court said. “In addition, we hold that no statute, regulation, past practice, or constitutional provision required the Commission to afford China Telecom any additional procedures beyond the paper hearing it received.” The court said “contrary to China Telecom’s suggestion, the Commission need not wait for a risk to materialize before revoking a [Communications Act] section 214 authorization.” Nothing in the law, or regulation, required the FCC to do more than it did, the opinion said. “China Telecom insists that it is entitled to discovery, a live hearing before a neutral adjudicator, and an opportunity to demonstrate or achieve compliance,” Edwards wrote: “Given the record in this case, however, we hold that none of the additional procedures sought by China Telecom is required by statute, regulation, FCC practice, or the Constitution.” The FCC issued the first international authorization for the company to its parent China Telecommunications in 2001. “Since that time, the national security landscape has changed significantly, with the focus shifting from terrorism to Chinese cyber threats,” the court said. After a nearly yearlong process, the FCC voted 4-0 in October 2021 to revoke the company’s international authorizations (see 2110260060), which the company appealed to the D.C. court (see 2111150025).

A coalition of industry groups and consumer advocacy organizations filed separate briefs Thursday in support of the FCC in the Consumers’ Research case challenging the USF contribution factor in the 11th U.S. Circuit Court of Appeals (docket 22-13315). USTelecom, NTCA, and the Competitive Carriers Association requested that the court hear oral argument. The groups said Consumers' Research "exaggerate[s] every aspect of this case," including the Universal Service Administrative Co.'s "role in determining quarterly contribution factors." The Schools, Health & Libraries Broadband Coalition, Benton Institute for Broadband & Society, National Digital Inclusion Alliance, and MediaJustice also filed a brief in support of the FCC. "Petitioners cannot circumvent their timeliness problem through a manufactured challenge to this ministerial public notice," the groups said, claiming the challenge is instead an "untimely review of the constitutionality of the entire Universal Service Fund."