Consumers' Research filed a new challenge of the FCC's Q1 2024 USF contribution factor in the 5th U.S. Circuit Court of Appeals Wednesday. It's the third time the group challenged a contribution factor with this court (see 2310030069). The contribution methodology and ultimate quarterly factor "exceed the FCC's statutory authority" and violate the nondelegation doctrine, the group said in its petition for review (docket 24-60006).

The FCC, responding to a Sept. 29 order to show cause why the U.S. Court of Appeals for the D.C. Circuit shouldn’t grant the NAB’s petition for mandamus relief by compelling the commission to complete its 2018 review of media ownership rules, thinks the petition should be dismissed as moot, the agency’s answer said Wednesday (docket 23-1120). The FCC released an order Tuesday completing the 2018 quadrennial review, giving NAB the mandamus relief it sought, it said. NAB said in a reply Thursday that it has reviewed Tuesday's order and is satisfied the FCC has now completed the 2018 review. NAB agrees the D.C. Circuit "should promptly dismiss NAB’s petition for mandamus as moot," it said.

The Insurance Marketing Coalition is seeking a review by the 11th U.S. Circuit Appeals Court of the FCC’s Dec. 18 order implementing rules under the Telephone Consumer Protection Act to target and eliminate illegal robotexts (see 2312190032), said IMC’s petition Thursday (docket 23-14125). The order exceeds the FCC’s statutory authority and was adopted “without observance of procedure required by law,” said the petition. IMC wants the 11th Circuit to vacate the order, which imposes several measures, including codifying that the national do not call registry’s protections apply to unlawful text messages. IMC is filing a "protective" petition for review now "out of an abundance of caution," it said. It will file a second petition for review when the order is published in the Federal Register, it said. In an unrelated Centers for Medicare & Medicaid Services rulemaking earlier this year, IMC described itself as representing a cross-section of insurance industry stakeholders, “promoting compliant best practices in insurance marketing and services.” Covington & Burling represents IMC in its 11th Circuit petition for review.

Petitioners Maurine and Matthew Molak are seeking 5th U.S. Circuit Court of Appeals review of the FCC’s Oct. 25 declaratory ruling authorizing funding for Wi-Fi service and equipment on school buses under the commission’s E-rate program, according to their petition Wednesday (docket 23-60641). The Molaks are “aggrieved” by the ruling because it will increase E-rate program “outlays” and “thereby directly increase" the amount of the federal universal service charge they pay each month as a line-item on their phone bill to fund the program's costs, their petition said. In addition, the Molaks have “a special interest in this matter” as co-founders of David’s Legacy Foundation, a nonprofit dedicated to the memory of their son “and committed to ending cyberbullying through education, legislation, and legal action,” it said. The ruling “undermines that crucial mission by enabling unsupervised social-media access by children and teenagers” on school buses, it said. The ruling exceeds the FCC’s statutory authority and “is contrary to law,” it added. The Molaks are asking the 5th Circuit to vacate the ruling “and grant such other relief as it may deem appropriate,” said the petition.

Consumers' Research told the 5th U.S. Circuit Court of Appeals, in a letter filed Monday (docket 22-60008), that it disagrees with the 11th Circuit's Dec. 14 opinion that Communications Act Section 254 contains a "sufficient 'intelligible principle'" (see 2312140058). The group said Section 254 is unconstitutional because it allows the FCC to "daisy-chain its power." Consumers' Research also disagreed with the 11th Circuit's ruling on its nondelegation challenge, saying that "letting private proposals automatically become binding ... is the definition of a private nondelegation violation."

During oral argument Monday on Dish Network’s challenge to the FCC’s approval of SpaceX's second-generation satellite constellation (see 2312110031), Judge Neomi Rao asked whether a treaty governs the relationship between the U.S. and the ITU. “The answer is yes,” FCC attorney James Carr wrote to the clerk of the U.S. Appeals Court for the D.C. Circuit Wednesday (docket 23-1001). Adopted in 1992, the ITU’s Constitution and Convention “is a treaty establishing the legal basis for the ITU and defining its purpose and structure,” Carr said. Earlier, Rao questioned whether an argument that the FCC impermissibly subdelegated authority to the ITU was inherently a challenge of FCC rules. Dish's counsel, Steptoe’s Pantelis Michalopoulos, immediately responded to Carr’s missive with his own letter to the D.C. Circuit clerk, "correct[ing] a possible misunderstanding” that Carr's missive raised, he wrote. “While the ITU has been created by treaty, the ITU’s findings do not have the force of a treaty, and the FCC has correctly not argued in its brief that they have such force,” Michalopoulos wrote. The ITU treaty’s preamble “makes clear” that it’s the sovereign right of each country to regulate its telecommunications, he said.

Plaintiffs Best Payphones, Northeastern Telecom and Paramount Financial Recovery seek a stay in their case in which they allege Verizon and MelTel charged them unlawfully high payphone rates, pending the FCC’s resolution of the plaintiffs’ Oct. 17 petition before the commission, said their motion Tuesday (docket 1:23-cv-0493) in U.S. District Court for Southern New York in Manhattan. The petition seeks a determination that between April 1997 and August 2006, Verizon and its predecessor companies were charging payphone rates that didn’t comply with FCC regulations, said their motion. All the claims asserted against Verizon in this case are based on Verizon charging the plaintiffs payphone rates that were higher than the compliant rate for the service in question, it said. The claim against MetTel is based on its rates being “contractually discounted from Verizon’s unlawfully high rates,” which resulted in MetTel rates being higher than they would have been had Verizon charged the proper compliant rate, it said. The FCC is “uniquely positioned” to determine what the compliant rate for payphone services should have been during the “damage period,” so it would be an “undue burden” on the court and the parties to continue this litigation “when the core issue to be determined is being addressed by the FCC,” it said. Verizon and MelTel moved Oct. 30 to dismiss the complaint, contending the plaintiffs have litigated their claims for 20 years, but repeatedly lost before state and federal agencies and in state and federal courts (see 2310310050).

Dahua Technology USA seeks leave to divide the 15 minutes of Dec. 14 oral argument time apportioned to Dahua and Hikvision USA between their two lawyers (see 2312060064), said Dahua’s unopposed motion Thursday at the U.S. Court of Appeals for the D.C. Circuit. Their consolidated cases (dockets 23-1032 and 23-1073) challenge an FCC order that effectively bars them, on national security grounds, “from bringing nearly all new products into the U.S. market, crippling their ability to compete,” said the motion. D.C. Circuit Rule 34(c) prohibits more than one lawyer from arguing cases in which 15 minutes or less is allotted, unless leave is granted for good cause shown, it said. “Good cause exists to grant this request,” said the motion. Though Dahua and Hikvision offer similar products, they “have their own business models and customer base and are impacted differently” by the FCC’s order, it said. Both petitioners “raise a significant number of issues in their briefs,” and permitting their separate counsel “each to prepare on a limited set of issues will enable a more thorough yet streamlined presentation” for the court, it said.

The U.S. Appeals Court for the D.C. Circuit granted the FCC’s Oct. 5 motion to dismiss Indian Peak Properties’ petition for review of a commission over-the-air reception device rule (see 2310240005), said the court's per curiam order Thursday (docket 23-1223). Indian Peak sought judicial review of two letter rulings issued by the Wireless and Media bureaus under delegated authority. But the challenged orders aren’t final, and the petition for review “is incurably premature” in light of Indian Peak’s application for review pending before the FCC, said the order. Under D.C. Circuit Rule 36, the disposition in the case won’t be published, it said. The court directed the clerk to withhold issuance of the mandate in the case until seven days after disposition “of any timely petition for rehearing or petition for rehearing en banc,” it said.

Each side will be apportioned 15 minutes in the Dec. 14 oral argument on the consolidated petitions of Hikvision USA (docket 23-1032) and Dahua Technology USA (docket 23-1073) challenging the FCC’s Nov. 25 order barring the authorization of network equipment considered a threat to U.S. national security (see 2310230016), said a clerk’s order Wednesday at the U.S. Court of Appeals for the D.C. Circuit. Oral argument will be heard by a panel consisting of Circuit Judges Patricia Millett, Florence Pan and Raymond Randolph, said the order.