The 6th U.S. Circuit Court of Appeals scheduled March 17 oral argument in Consumers’ Research’s legal challenge of the FCC’s Universal Service Fund’s Q4 2021 contribution factor, said a notice Tuesday (docket 21-3886). The time allotted for oral argument is 15 minutes per side, said the notice. Consumers’ Research’s various cases, including another filed last month in the 6th Circuit (see 2212280038), argue the USF contribution factor is an unconstitutional tax because it's imposed by the FCC rather than by Congress, and that the FCC has violated the Administrative Procedure Act.

China Telecom Americas urged the U.S. Court of Appeals for the D.C. Circuit not to unseal parts of a decision last year by the court upholding the FCC's revocation of the company’s domestic and international authorities (see 2111150025). “Certain specific portions of the Opinion would harm China Telecom Americas if made public and should remain under seal,” said a filing Friday in docket 21-1233. “If now unsealed, the Opinion would reveal confidential and sensitive information that would cause China Telecom Americas significant harm to its business interests, and would not serve the public interest,” the company said. The U.S. government disagreed. “The Government sees no compelling reason why the Court’s opinion in this case should not be unsealed,” the U.S. said, also Friday. “While some of the statements at issue derive in part from information that China Telecom requested to keep confidential in its FCC filings, and that the FCC then treated as confidential at the company’s request, the Government at this time sees no compelling reason why any of the statements identified by China Telecom need to be redacted from the Court’s opinion,” the government said.

Duke Energy’s opening brief is due Feb. 15 at the 4th U.S. Circuit Court of Appeals in its petition for review of the FCC’s Nov. 18 order resolving a dispute over pole attachment fees in AT&T’s favor (see 2212290050), said a clerk’s briefing order Friday (docket 22-2220). The combined response of the FCC and intervenor AT&T is due April 3, and Duke Energy’s optional reply is due 21 days later, said the order. Duke Energy contends it was “adversely affected” by certain parts of the FCC’s order, asserting they exceeded or were inconsistent with the agency’s jurisdiction and statutory authority.

A Freedom of Information Act case against the FCC concerning documents that Sinclair submitted to the agency is close to a settlement, according to papers filed in U.S. District Court for the District of Columbia (docket 1:21-cv-00895). "Parties have reached an agreement in principle,” said a motion seeking a temporary stay in the case from the assistant U.S. attorney representing the FCC. The case concerns Media Action Center Executive Director Sue Wilson Cowan's FOIA request for documents connected with Sinclair’s unsuccessful proposed buy of Tribune Broadcasting, which was designated for hearing in 2018 under then-FCC Chairman Ajit Pai. In 2020, Wilson filed a FOIA request seeking document submissions by Sinclair that led to the FCC agreeing to a consent decree with the broadcaster that concluded it had acted in good faith during the Tribune proceeding. Before the consent decree, the FCC’s HDO in the case raised allegations Sinclair violated the FCC’s candor rules. Sinclair objected to the disclosure, and the FCC didn’t respond to Wilson’s October 2020 request until May 2021, when it denied it. The agency has since partially released some of the requested documents but then sought a protective order blocking Cowan from using the documents after the FCC incorrectly left some information unredacted. That protective order was granted in part in September.

The FCC wants the 4th U.S. Circuit Court of Appeals to “fix a briefing schedule” that affords the commission at least 45 days to respond to Duke Energy’s opening brief in its petition for review, said the agency’s motion Thursday (docket 22-2220). Duke Energy doesn’t oppose the motion, provided it's given at least 30 days to file a reply to the FCC’s responding brief, it said. The FCC doesn’t object to that request, it said. Duke Energy is seeking a review of the commission’s final Nov. 18 order resolving a dispute in AT&T’s favor over the reasonableness of pole attachment fees (see 2212290050). Duke Energy contends it was “adversely affected” by certain parts of the FCC’s order, asserting they exceeded or were inconsistent with the agency’s jurisdiction and statutory authority.

The FCC's partial authorization of SpaceX's second-generation satellite constellation faces another challenge in federal court. In its notice of appeal posted Thursday in U.S. Court of Appeals for the D.C. Circuit (docket 23-1001), Dish Network said the order wrongly ignores "unrebutted expert studies ... showing that SpaceX’s Gen2 system would significantly exceed the applicable power limits adopted by the FCC for the 12 GHz band, and thus would risk causing unacceptable interference" with its DBS service. It said the FCC also violated the Administrative Procedure Act by not letting Dish access underlying data behind SpaceX claims its system would fall within ITU power limits. Dish asked the court to vacate the authorization order. The FCC didn't comment Friday. International Dark-Sky Association is also appealing the order (see 2301030014).

The FCC's partial grant of SpaceX's second-generation constellation application last month (see 2212010052) is an abuse of agency discretion under the Administrative Procedure Act and a violation of the National Environmental Policy Act, nonprofit International Dark-Sky Association told the U.S. Court of Appeals for the D.C. Circuit in a notice of appeal last week (docket 22-1337). The FCC didn't comment Tuesday.

The 4th U.S. Circuit Court of Appeals granted AT&T’s motion to intervene in support of respondent FCC in Duke Energy’s petition for review of the commission’s final Nov. 18 order resolving a dispute in AT&T’s favor over the reasonableness of pole attachment fees, said a clerk's order (docket 22-2220) signed Thursday. The FCC and AT&T are to file a combined brief, said the order. Duke Energy is “adversely affected” by certain parts of the FCC’s order, and seeks a review on the grounds that they exceed or are inconsistent with the agency’s jurisdiction and statutory authority, violate the Administrative Procedure Act, “and are arbitrary, capricious an abuse of discretion or otherwise contrary to law,” said its Nov. 28 petition.

A court ruling striking down USF and the Rural Digital Opportunity Fund would significantly harm millions of people and businesses and threaten the operations and investments of cable operators, NCTA told the 6th U.S. Circuit Court of Appeals in an amicus brief Monday supporting the FCC in Consumer’s Research v. FCC (docket 21-3886). Consumers' Research argued the funding mechanism for the Universal Service Fund violates the U.S. Constitution by delegating tax responsibilities reserved for Congress (see 2212130069). “The tremendous real-world stakes of this case should give this Court pause before entertaining Petitioners’ unprecedented non-delegation theory,” NCTA said. Ending RDOF would threaten internet connectivity across the country and strand investments in broadband infrastructure expansion “without any ability to recover the considerable resources operators have poured into these projects,” NCTA said. “Petitioners fail to give the Court any compelling reason to cut off consumers from their services, upend cable operators’ customer relationships, and disrupt the major investments cable operators have already made in reliance on USF support,” said the filing. Creating a separate funding entity to manage universal access to telecommunications is a common practice internationally and in line with International Telecommunications Union best practices, said Penn State Law Professor Robert Frieden in a separate amicus brief. Having a separate organization, “promotes greater transparency, accountability, and efficiency in the collection and disbursements of funds,” Frieden said.

Consumers' Research's petition for review of the FCC's Q4 2021 USF contribution factor is untimely and its claims "lack merit," the commission told the 6th U.S. Circuit Court of Appeals in a brief posted Tuesday in case 21-3886. The commission's authority to delegate the Universal Service Administrative Co. with calculating the quarterly factor is "clearly constitutional" because USAC is "subordinate to the commission and assists only in performing the accounting, billing, disbursement, and related functions necessary to operate the program," it said. The FCC asked the court to "not reward petitioners’ disregard for Congress’s comprehensive framework for judicial review of FCC orders by entertaining this petition on the merits." A coalition of industry groups filed a joint brief in support of the FCC and asked the court to reject Consumers' Research's claim that the contributions are taxes rather than fees. Petitioners "exaggerate every aspect of this case" and USAC’s role in determining the quarterly factors, said USTelecom, NTCA, and the Competitive Carriers Association in a joint brief: "The FCC’s regulations demonstrate that USAC exercises no lawmaking authority." The Schools, Health, & Libraries Broadband Coalition, Benton Institute for Broadband & Society, National Digital Inclusion Alliance and Media Justice also asked the court to reject Consumers' Research's challenge, said the intervenors. "Petitioners cannot circumvent their timeliness problem through a manufactured challenge to this ministerial public notice," the groups said, citing the FCC's quarterly notice announcing each factor. Consumers' Research is seeking "untimely review of the constitutionality of the entire Universal Service Fund," the groups said, echoing arguments made by the industry coalition. The 5th Circuit held oral argument earlier this month on the group's challenge of the Q1 2022 contribution factor (see 2212060070).