The 5th U.S. Circuit Appeals Court should reverse the FCC's ruling authorizing E-rate funding for Wi-Fi on school buses (see 2312200040) by interpreting the Communications Act “in accordance with its ordinary meaning,” Senate Commerce Committee ranking member Ted Cruz (Texas) and six other Republican senators wrote in an amicus brief Tuesday (docket 23-60641). The brief supports Maurine and Matthew Molak's petition to defeat the Oct. 25 declaratory ruling (see 2404030010).
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.
A week before Jacob Wohl and Jack Burkman were to stand trial before a jury on damages for their roles in the robocall campaign to suppress Black citizens' mail-in votes in the run-up to the 2020 election (see 2312040022), they and the 10 plaintiffs in the case against them, including New York Attorney General Letitia James (D), proposed a consent decree Monday (docket 1:20-cv-08668) that would avert that trial.
The American Television Alliance (ATVA) of low-power stations seeks leave to intervene as of right in defense of the FCC’s Dec. 26 quadrennial review order against the four consolidated petitions challenging the order for allegedly violating Section 202(h) of the Telecommunications Act, said the alliance’s unopposed motion Friday in the 8th U.S. Circuit Court of Appeals. The 8th Circuit, in an April 2 order, granted NCTA’s motion to intervene on the FCC’s behalf (see 2404020045). In the order under review, the FCC found that its existing media ownership rules, with some minor modifications, remain necessary in the public interest, said ATVA’s motion. Most important to the group, the FCC retained the local television ownership rule with modest adjustments to reflect changes that have occurred in the television marketplace, it said. That rule limits the number of full-power television stations an entity may own within the same local market to at most two, subject to some limits, it said. The “top-four prohibition” generally bars broadcasters from owning two stations ranked among the top four in a local market, it said. The order “rejected broadcaster efforts” to weaken the top-four prohibition for strong public interest reasons, and the commission also took action to prevent parties from exploiting unintended ambiguities or gaps in the top-four prohibition, it said. ATVA and its members will be “substantially affected” by the 8th Circuit’s review of the order, said the motion. FCC rules require ATVA members to engage in retransmission consent negotiations with television broadcasters throughout the country, and the association argued throughout the agency proceeding that the challenged rules will protect consumers from rising costs due to pass-through of retransmission consent fee increases that result when broadcasters are able to negotiate retransmission consent fees for two top-four stations jointly in a market, it said. ATVA “likewise explained to the FCC the need to close the loophole that was increasingly being exploited” by network affiliation arrangements and acquisitions to circumvent the top-four prohibition, it said. An 8th Circuit decision calling the FCC’s decisions into question in these areas “would increase broadcasters’ already-powerful ability to extract supracompetitive retransmission consent fees from ATVA members and, ultimately, from consumers,” said the motion. The consolidated petitions pending in the 8th Circuit are from Zimmer Radio (docket 24-1380), Beasley Media Group (docket 24-1480), NAB (docket 24-1493) and Nexstar Media Group (docket 24-1516). The 8th Circuit previously granted the unopposed motions of four network affiliates associations (see 2403220041) and six radio group owners (see 2403260001) to intervene in support of the four consolidated petitions.
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.
A 9th U.S. Circuit Appeals Court panel confronted the attorney for lead plaintiff-appellant Walleye Group with harsh questioning in oral argument Friday, asking where in the record there’s irrefutable evidence that five Intelsat defendants, including former Chairman David McGlade and several major shareholders, committed actionable insider trading under Section 9(b) of the Securities Exchange Act, as Walleye alleges. Judges Milan Smith, Andrew Hurwitz and Anthony Johnstone comprised the panel.
The FCC's Oct. 25 declaratory ruling authorizing E-rate funding for Wi-Fi on school buses (see 2312200040) is an "unlawful exercise" of the commission's statutory authority "and may damage American students' health and diminish their educational achievement," said Michigan State University law professor Adam Candeub in a 5th U.S. Circuit Appeals Court amicus brief Friday (docket 23-60641).
The 8th U.S. Circuit Court of Appeals adopted the briefing schedule that the parties proposed in the four consolidated petitions for review challenging the FCC’s Dec. 26 quadrennial review order for allegedly violating Section 202(h) of the Telecommunications Act (see 2404030004), said the court’s tentative schedule Friday. The opening briefs of the four petitioners and their intervenor supporters are due July 15, it said. Sept. 13 is the deadline for the FCC’s response brief and that of NCTA, which is intervening on the FCC’s behalf to defend the order against the petitioners’ Section 202(h) challenges, said the schedule. Reply briefs are due Oct. 15 and final briefs Nov. 18, it said. The parties said they framed the schedule to allow for the briefing to be complete and the cases ready for submission on the merits before the end of calendar 2024. The dates “may be advanced or extended by court order or a party's early or late filing of a brief,” said the schedule. All briefs and appendices should be filed with the 8th Circuit’s St. Louis office, it said. The consolidated petitions pending in the 8th Circuit are from Zimmer Radio (docket 24-1380), Beasley Media Group (docket 24-1480), NAB (docket 24-1493) and Nexstar Media Group (docket 24-1516).
Consumers' Research asked the 5th U.S. Circuit Court of Appeals to reverse the FCC's USF contribution factor for Q2 of FY 2024 (see 2401100044). In a filing posted Wednesday (docket 24-60160), the group repeated its claim that USF contributions are illegal taxes that the Universal Service Administrative Co. collects and "should be rejected."
Disability law “must be considered” when determining whether standards incorporated by reference into federal regulations are reasonably available as the Administrative Procedure Act requires, said the American Foundation for the Blind and Prime Access Consulting, which promotes accessible websites and web content, in an amicus brief Wednesday (docket 23-1311) at the U.S. Court of Appeals for the D.C. Circuit.