The 5th U.S. Circuit Appeals Court granted the Schools, Health & Libraries Broadband Coalition's unopposed motion for leave to intervene on the FCC’s behalf in opposing a petition seeking court review of the commission's Oct. 25 declaratory ruling authorizing E-rate funding for Wi-Fi service and equipment on school buses (see 2401200001). U.S. Circuit Judge Leslie Southwick signed the order Wednesday (docket 23-60641). Maurine and Matt Molak are challenging the FCC's ruling because they say it will increase E-rate program “outlays” and raise the federal universal service charge they pay as a line-item on their monthly phone bill. They also contend the ruling gives children and teenagers unsupervised social media access on school buses, and that this runs counter to the mission of David's Legacy Foundation, which advocates ending cyberbullying. The Molaks co-founded the foundation in memory of their son. The coalition argues that the Molaks’ petition, if successful, “would do great harm” to the interests of the coalition and its 300 members by “inhibiting online learning,” it said.

Connecticut low-power TV broadcaster Radio Communications Corp. (RCC) seeks “expedited consideration” of its Jan. 10 petition for review to overturn the FCC’s Dec. 12 order implementing the 2023 Low Power Protection Act (LPPA), said RCC's emergency motion Tuesday (docket 24-1004) at the U.S. Court of Appeals for the D.C. Circuit. The LPPA allows certain LPTV stations to upgrade to Class A status (see 2401180075), RCC also requests a stay of the FCC order and expedited case processing should a stay be entered, said the motion. The FCC opposes the motion, and DOJ takes no position, RCC said. The company argues that the FCC order unconstitutionally restricts program content for Class A eligibility purposes, and unlawfully precludes Class A licensees from asserting cable TV must-carry rights, said the motion. The order also fails to follow the LPPA’s “direction” to protect LPTV stations, it said. The stay, expedited review, and summary reversal are warranted, it said. Expeditious consideration is required because the FCC “announced the imminent commencement of the one-year LPTV license upgrade filing window under the LPPA to change station class from LPTV to Class A “with the same license terms as full power TV stations,” it said. But the FCC order “precludes RCC from filing an LPPA Class A upgrade application,” said the motion. Absent expedited consideration of its petition, “it appears unlikely that RCC would be able to fully litigate this case, come into compliance with full power TV rules, and then timely file a Class A license upgrade application within the LPPA’s one-year window,” it said. RCC’s loss of its Class A license upgrade “filing right” causes irreparable injury because “the only opportunity to file for the economic benefits afforded during the LPPA’s one-year Class A license upgrade period will be lost forever,” the motion said. “Loss of license by displacement” will also cause irreparable injury because RCC would lose revenue and viewers, “and viewer relationships would be damaged,” it said: “Lost viewers would necessarily move on to other program content providers and that lost good will could never be recaptured even if RCC were somehow able to locate new spectrum.”

The U.S. Chamber of Commerce, the Texas Association of Business and the Longview, Texas, Chamber of Commerce sued the FCC in the 5th U.S. Circuit Court of Appeals over the agency's rules defining "digital discrimination of access." The rules were adopted by a 3-2 vote during a November agency meeting (see 2311150040). The order "purports to implement" part of the Infrastructure Investment and Jobs Act "by adopting a definition of 'digital discrimination of access' to broadband internet service that encompasses '[p]olicies or practices, not justified by genuine issues of technical or economic feasibility,' that result in disparate treatment or disparate impact," the groups said in the filing. Filed Friday, the suit was posted Monday.

Connecticut low-power TV broadcaster Radio Communications wants the U.S. Court of Appeals for the D.C. Circuit to overturn an FCC order creating a window for certain LPTV stations to upgrade to Class A status. “Review is required” because the FCC’s implementation of the Low-Power Protection Act “fails to protect, in a very substantial manner," LPTV stations and licenses, and the newly created Class A stations, as Congress required, said a petition for review filed with the D.C. Circuit Jan. 10 and posted Thursday (docket 24-1004). The order, parts of which will take effect Feb. 9, would open a one-year window only for LPTV stations that broadcast a minimum of 18 hours a day, carry three hours per week of local programming and are located in markets of 95,000 households or fewer -- and that already met those requirements 90 days prior to the LPPA's Jan. 5, 2023, approval by Congress. LPTV groups were critical of the LPPA and the subsequent FCC order for allowing only a few stations to convert to Class A (see 2312080043). The petition asks the court to review the order on an expedited basis, stay it, find it unlawful and rule that RCC isn’t precluded from applying for the window, that program content can’t be used to deny Class A licenses and that Class A stations can assert must-carry in their markets. Radio Communications CEO Robert Knapp told us the company plans to ask the court for summary judgment against the FCC.

Two FCC commissioners say social media companies' embrace of U.S. Supreme Court precedent is misplaced when it comes to their arguments in the challenges before SCOTUS of Texas and Florida social media laws (see 2309290020) that such platforms have a First Amendment right to censor users' speech. Writing last week in the Yale Journal on Regulation, Commissioners Brendan Carr and Nathan Simington said SCOTUS has never held that the First Amendment gives dominant companies like big social media "a freewheeling right to censor others’ speech." Pointing to such SCOTUS precedent as its Turner decision, requiring cable systems to carry broadcast TV channels, the Republican commissioners said the high court has allowed the government to apply anti-discrimination requirements to corporations in ways consistent with the First Amendment. The commissioners said social media regulations like Texas' House Bill 20 "are easily distinguished" from regulations struck down on First Amendment grounds in decisions such as Tornillo, which involved a Florida law requiring newspapers to run partisan editorial content. "Indeed, HB20 touches none of the First Amendment third rails that were at play in those cases," they said. When considering such issues as market power and the degree to which the regulated entity makes individualized decisions about speech rather than being a common carrier of speech, "it is clear that the government can, in the appropriate case, apply anti-discrimination rules to social media platforms," they said. "Texas’s HB20 is one of those cases."

The 2018 quadrennial review order supports Gray Television's arguments against the FCC’s $518,000 enforcement action over a 2020 transaction involving an Anchorage station, Gray told the 11th U.S. Circuit Court of Appeals in a response letter Thursday. Gray was responding to an FCC letter last week giving the court notice of the QR order, which was released in December. Gray has argued that the agency created a requirement for what data is used to determine station rankings without notice when it issued the forfeiture in 2022 (see 2307240065). Ratings data from the time of the transaction showed Gray already owned two of the top-four stations in the market, which the broadcaster has argued means the Anchorage deal didn’t result in a new top-four combination -- instead an existing top-four combination added another station. The FCC has argued that this ratings data wasn’t available to Gray when it made the deal and so is invalid. The QR order changes the ranking methodology to use “available data over a 12-month period immediately preceding the date of application,” Gray told the court Thursday. The inclusion of the word “available” in the QR order “underscores its prior absence, and it highlights the FCC’s failure to provide Gray with fair notice of such a requirement which the FCC invented to justify penalizing Gray,” said the broadcaster. The QR order also doesn’t show that applying the agency’s rule against affiliation swaps to Gray’s purchase of a station’s network affiliation “furthered an interest in competition, as the First Amendment requires,” Gray told the court. “Thus, nothing the FCC said in the 2023 Order cures the fatal defect in the Forfeiture Order.” Oral argument in the case is set for March.

The 4th U.S. Circuit Appeals Court removed the consolidated pole attachment appeal of Duke Energy and AT&T against the FCC from the oral argument calendar for Jan. 24 and granted their unopposed joint motion to voluntarily dismiss the case (see 2401080036), said the court’s order Monday (dockets 22-2220 and 23-1010). The appeal was dismissed “on terms agreed to by the parties,” said the order.

Duke Energy and AT&T are requesting that their consolidated pole attachment appeals against the FCC be voluntarily dismissed under Rule 42(b) of the Federal Rules of Appellate Procedure, said their unopposed joint motion Friday (dockets 22-2220 and 23-1010) at the 4th U.S. Circuit Court of Appeals. Oral argument is scheduled for Jan. 24 (see 2312040040), but Duke and AT&T have reached a settlement that resolves their dispute and they have agreed to jointly dismiss their respective challenges to the FCC’s November 2022 order “at issue in these consolidated appeals,” said the motion. The agency has “represented” that it doesn’t oppose the motion, it said. The order determined that AT&T should pay a pole attachment rate that’s lower than that of its joint use agreement with Duke but higher than the rate paid by other companies that attach their lines to Duke’s poles (see 2309050005). It also ordered Duke to refund AT&T the difference between the rate in the joint use agreement and what the commission found to be the “just and reasonable rate” for the period covered by a three-year statute of limitations.

The FCC asked the 5th U.S. Circuit Court of Appeals to hold Consumers' Research's challenge of the Q1 2024 USF contribution factor in abeyance until a separate challenge the group filed is decided (see 2401030069), said the commission's motion Friday (docket 24-60006). Consumers' Research previously challenged the Q1 2022 contribution factor, which the court heard en banc in September (see 2309190072). "Because these cases involve the same parties and the same legal issues, it would best serve the interest of judicial economy and efficiency for the court to hold this case in abeyance until it issues a ruling" in the earlier case, the FCC said.

The U.S. Court of Appeals for the D.C. Circuit accepted the FCC’s 2018 quadrennial review order and dismissed NAB’s petition for a writ of mandamus as moot, a discharge order Tuesday said (docket 23-1120). NAB had asked the court to compel the FCC to act on the 2018 QR. Both NAB and the FCC requested the dismissal after the agency issued the 2018 QR one day before the court’s Dec. 27 deadline.