TWN Communications, supplier of commercial and residential broadband services to rural electric cooperatives, taps former FCC Commissioner Jonathan Adelstein as executive vice president-chief strategy and external affairs officer ... NCTA hires NTIA’s Russ Hanser as deputy chief legal officer ... Incompas adds DC Blox CEO Jeff Uphues to its board ... Silicon Labs taps board member Bob Conrad, also a former Texas Instruments and Analog Devices executive, as senior vice president-worldwide operations; Sandeep Kumar, who currently leads global operations, will depart Silicon Labs in 2024's second half ... New IAB hires: Cintia Gabilan, ex-Amazon and Meta, as vice president-IAB Media Center; Arlene Mu, ex-Lowe's, as assistant general counsel; and Nadine Karp McHugh, ex-Goldman Sachs, as new IAB executive in residence ... Ivanti, IT and security company, adds Proofpoint’s Alex Lei, also former Dell Technologies, as senior vice president-sales, Asia Pacific and Japan ... Streaming media company FreeCast rehires Chris Savine, ex-Netscape and AOL Time Warner, as chief operations officer and head-finance; he previously was FreeCast’s chief financial officer from 2014 to 2020 ... Involta, provider of data center and cloud infrastructure and services, hires Everstream Solutions' Dereck Wischmeyer as general counsel.
The consolidated petitions of 20 industry groups that challenge the FCC’s Nov. 20 order implementing Section 60506 of the Infrastructure Investment and Jobs Act (see 240319004) do so because the order interprets digital discrimination to mean not only intentional discrimination but also “actions with a disparate impact,” the groups’ brief said Wednesday (docket 24-1179) in the 8th U.S. Circuit Appeals Court in support of their petitions. Disparate-impact liability is "rare," and every "interpretive clue here" confirms that Congress didn't intend to impose it, said the brief that the U.S. Chamber of Commerce, CTIA and NCTA and others submitted. The FCC nevertheless has created the “first-ever regime” prohibiting business practices that cause a disparate impact based on income level, it said. The petitioners contend that the rule exceeds the commission’s statutory authority and that the order is arbitrary and capricious under the Administrative Procedure Act, it said. In light of the many "complex and novel questions" presented and the fact that these cases involve two “distinct, nonaligned groups of petitioners,” the industry petitioners ask that the 8th Circuit afford one hour of oral argument time, with the precise division to be determined after the briefing is complete, it said.
The 6th U.S. Circuit Appeals Court granted the unopposed March 20 motion of Hamilton Relay, a telecommunications relay service (TRS) provider, to intervene in support of the Ohio Telecom Association’s petition for review challenging the FCC’s Dec. 21 order modifying and expanding the commission’s data breach notification rules on telecom carriers, VoIP providers and TRS providers (see 2403210001), said a clerk’s order Wednesday (docket 24-3133). Hamilton provides intrastate and interstate text telephone, speech-to-speech and captioned telephone services in numerous states through individual state TRS contracts, plus nationwide relay service through its internet protocol captioned telephone service, which is regulated by the FCC. Hamilton’s motion said it was entitled to intervene because it was a party of interest in the proceeding leading to the adoption of the order and because the order’s data breach notification rules changes adversely affect its interests.
The FCC’s implementation of the 2023 Low Power Protection Act favors full-power stations at LPTV’s expense (see 2312080043), improperly uses Nielsen designated market areas, and unlawfully doesn’t give Class A stations must-carry status, said a brief from Radio Communication Corporation in the U.S Court of Appeals for the D.C. Circuit Monday. By allowing LPTV stations to upgrade to Class A status only in DMAs with 95,000 households or fewer, the FCC “excludes service to populated areas and promotes Class A service to deserts, rivers, lakes, mountains, prairie grasslands, literally authorizing Class A service to everywhere, except those places where people are located,” said RCC. The FCC has said that the use of Nielsen DMAs and the 95,000 household threshold were specifically required by the language of the LPPA, but RCC’s brief disagreed. “The LPPA does not authorize the Commission to sacrifice LPTV and Class A licenses for the benefit of NAB’s Clients,” RCC said. In the brief’s glossary, the term “NAB’s Clients” is defined as “full service TV clients” – full power stations. Rather than limiting Class A upgrades based on the size of a station’s DMA, the agency should have limited it based on the size of their community of license, RCC said. By using Nielsen’s markets, the FCC is unconstitutionally delegating authority to a private company, RCC said. The FCC’s order “transforms the ‘Low Power Protection Act’ into the ‘Large Power Protection Act’ by unreasonably limiting, at every critical determination, LPPA’s economic protection of LPTV stations,” RCC said. The DC Circuit rejected RCC's request for an emergency stay of the FCC's LPPA order in March.
Here are Communications Litigation Today's top stories from last week, in case you missed them. Each can be found by searching on its title or by clicking on the hyperlinked reference number.
Vermont National Telephone (VTEL) is challenging the DOJ's move to dismiss fraud litigation against Dish Network and designated entities (DE) Northstar Wireless and SNR Wireless regarding 2015's AWS-3 auction (see 2403040052).
The Insurance Marketing Coalition asked the 11th U.S. Circuit Appeals Court to reject the FCC’s opposition to the coalition’s motion to stay portions of the commission’s Dec. 18 order implementing rules under the Telephone Consumer Protection Act to target and eliminate illegal robotexts, pending the disposition of the coalition’s appeal to vacate the order, the coalition’s reply said Monday (docket 24-10277).
Section 60506 of the Infrastructure Investment and Jobs Act “should have been as unremarkable as it was uncontroversial,” said a brief Monday (docket 24-1179) in the 8th U.S. Circuit Court of Appeals from 20 industry and business petitioners, including CTIA and the U.S. Chamber of Commerce, in support of their 16 consolidated challenges to the FCC’s Nov. 20 digital discrimination order (see 240319004).
Communications Litigation Today is tracking the below lawsuits involving appeals of FCC actions. Cases marked with an * were terminated since the last update. Cases in bold are new since the last update.
State Farm incorrectly contends that Gabriel Nater fails to state a claim under the Telephone Consumer Protection Act, said the plaintiff’s opposition Wednesday (docket 1:23-cv-01408) in U.S. District Court for Central Illinois in Peoria to State Farm’s motion to dismiss his first amended complaint. Nater’s complaint “adequately states a claim for relief” because at the pleading stage of a TCPA case, the plaintiff “need only allege facts supporting a reasonable inference” that State Farm is responsible for the illegal calls that he received on his cellphone, said his opposition. The defendant nevertheless asks the court “to turn a blind eye” to the complaint’s “detailed allegations that recite the clear legal basis for holding State Farm liable for the unauthorized telemarketing calls” made to Nater and the putative class, it said. The company “simply ignores” the FCC’s order establishing that a seller such as State Farm may be vicariously liable under federal common law agency-related principles for violations of either Section 227(b) or 227(c) committed by telemarketers that initiate calls to market its products or services, said Nater’s opposition. State Farm’s motion to dismiss “should be denied in its entirety” because Nater “has met his burden to show subject-matter jurisdiction, it said. The complaint’s allegations show that even if it turns out that State Farm didn’t itself place the calls to Nater, it “can still be held vicariously liable,” said the opposition. If the court isn't inclined to deny State Farm’s motion “outright,” Nater “requests jurisdictional discovery to explore State Farm’s relationship with its agent as well as the unidentified entity it claims made the calls at issue,” it said. Should the court be inclined to grant State Farm’s motion to dismiss, in whole or in part, Nater requests leave to amend “to cure any perceived deficiencies,” it said.