Dish Network plans to use three oversized exhibits during Monday’s oral argument in support of its challenge of the FCC’s determination that SpaceX’s Gen2 Starlink system won't cause harmful interference to geostationary satellite operations such as Dish’s direct broadcast satellite system (see 2312040033), Dish’s counsel, Steptoe partner Pantelis Michalopoulos, wrote Mark Langer, clerk of the U.S. Appeals Court for the D.C. Circuit, in a letter Monday (docket 23-1001). One of the exhibits will be a reproduction of a graphic in Dish’s April 14 opening brief depicting Dish’s geostationary satellites in Earth orbit, said Michalopoulos. The second, reproduced from the parties’ joint appendix, purports to show the congestion that the SpaceX constellation will cause, he said. The third is a timeline of events in the proceeding, he said. Each exhibit will be placed on an easel, said Michalopoulos. The exhibits will also be printed as a handout for the three-judge D.C. Circuit panel, he said. They will be helpful to the court “in illustrating issues central to this matter,” he said.

The FCC seeks leave to allow two attorneys to argue on its behalf during Dec. 11 oral argument on the consolidated challenges brought by Dish Network and the International Dark-Sky Association against the FCC’s order authorizing SpaceX to deploy and operate a constellation of 7,500 second-generation Starlink communications satellites, said a commission motion Friday at the U.S. Court of Appeals for the D.C. Circuit. The consolidated cases “raise unrelated legal and factual issues arising out of an FCC licensing proceeding,” said the motion. Dividing argument as requested will aid in the D.C. Circuit’s “understanding of the complex issues presented,” it said. Dish challenges the FCC’s determination that SpaceX’s Gen2 Starlink system won't cause harmful interference to geostationary satellite operations such as Dish’s direct broadcast satellite system (docket 23-1001), it said. IDSA argues that the FCC erred in concluding that the National Environmental Policy Act didn’t require additional environmental review of the SpaceX satellites (docket 22-1337), it said. Under the D.C. Circuit’s Nov. 29 order assigning the FCC 16 minutes of argument time to be divided with intervenor SpaceX as the parties see fit (see 2311300004), the FCC has agreed to “cede” four minutes to SpaceX, said the motion. Should the D.C. Circuit grant the motion dividing the remaining 12 minutes between attorneys Rachel Proctor May and James Carr, May will address all issues raised by IDSA, and Carr will address those raised by Dish, it said. The FCC believes that permitting argument to be divided in that manner will “materially aid” in the D.C. Circuit’s “understanding of the distinct interference and environmental challenges to the FCC’s order in this case,” it said. Counsel for Dish and SpaceX consent to the motion, but IDSA’s position is unknown, it said.

The 4th U.S. Circuit Court of Appeals calendared oral argument for Jan. 24 at 9:30 a.m. in Richmond Duke Energy’s petition for review of the FCC’s 2018 pole attachment order (see 2311030056), said a notification Friday (docket 22-2220). The FCC's 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 U.S. Court of Appeals for the D.C. Circuit is allocating 16 minutes a side for Dec. 11 oral argument in the consolidated challenges of the International Dark-Sky Association and Dish Network to the FCC's partial approval of SpaceX's second-generation satellite constellation (see 2310270048), said the court’s order Wednesday (dockets 23-1001 and 22-1337). Dish and the association each will be apportioned eight minutes, and the FCC will get 16 minutes, to be divided with intervenor SpaceX “as the parties see fit,” said the order. Circuit Judges Neomi Rao, Michelle Childs and Douglas Ginsburg will comprise the panel hearing oral argument, it said.

The FCC's USF funding mechanism "violates the original understanding of the nondelegation doctrine, the modern intelligible-principle doctrine, and the private nondelegation doctrine" (see 2310060069), Consumers' Research told the U.S. Court of Appeals for the D.C. Circuit in a reply brief Thursday (docket 23-1091). The court should "make clear that Congress cannot delegate such power, let alone to a private entity," the group said.

The FCC violated the Administrative Procedure Act when it amended its rules to incorporate four new equipment testing standards, and did so without the proper notice and comment protocol, alleged iFixit, Public Resource and Make Community in a petition for review Wednesday (23-1311) at the U.S. Court of Appeals for the D.C. Circuit. The FCC didn’t publish the proposed rules in the Federal Register, and they weren’t otherwise “reasonably available for use in commenting on them,” said the petition. The petitioners aren’t asking the court to vacate the rules, only to remand them to the FCC for a new and proper NPRM, it said. The amendments were published as a final order in the Sept. 29 FR and took effect Oct. 30. An FCC spokesperson declined to comment Thursday.

The 4th U.S. Circuit Court of Appeals is tentatively calendaring oral argument in Duke Energy’s petition for review of the FCC’s 2018 pole attachment order for the Jan. 23-26 oral argument session in Richmond, said a clerk’s order Thursday (dock 22-2220). The FCC's 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.

Congress "handed over its taxing power without statutory limits" to the FCC, an agency "constrained only by its own precatory 'aspirations', and then for good measure let the agency redefine its own scope of taxing authority," Consumers' Research told the U.S. Supreme Court in a cert petition Friday (docket 23-456) challenging the FCC's USF contribution factor (see 2308030071). The group warned that the 6th U.S. Circuit Court of Appeals decision upholding the 2021 Q4 contribution factor and the 5th Circuit's rehearing of the Q1 2022 USF contribution factor were "portending" a circuit "split." It asked SCOTUS to "grant review and reverse" the lower court's decision upholding the contribution methodology, calling USF the "poster child for the problems that result from the delegation of constitutionally vested authority."

U.S. District Judge Colleen Kollar-Kotelly for the District of Columbia has denied a request by Dish Network designated entities Northtar Wireless and SNR Wireless for permission to refile a motion for partial summary judgment on actual damages in the fraud litigation brought by Vermont National Telephone regarding the FCC's Auction 97 (see 2310250009), per a minute order Friday (docket 1:15-cv-00728).

The 5th U.S. Circuit Court of Appeals denied a joint motion from the Benton Institute for Broadband & Society, Center for Media Justice and National Digital Inclusion Alliance to intervene on behalf of the FCC in Consumers' Research's new challenge of the USF Q4 2023 contribution factor (see 2310030069). An order posted Monday in case 23-60525 was denied "without prejudice" should the groups want to file amicus curiae.