New York state’s affordable internet law won’t be enforced for now, ISP associations said Monday. The industry groups won’t file a petition for rehearing or rehearing en banc of a 2nd Circuit U.S. Court of Appeals decision upholding New York state’s Affordable Broadband Act, according to a Friday letter to the court from ACA Connects, CTIA, NTCA, USTelecom and the New York State Telecommunications Association. The 2nd Circuit ruled in April that federal law doesn’t preempt the 2021 New York law requiring $15 monthly plans with 25 Mbps download and 3 Mbps upload speeds for qualifying low-income households (see 2404260051). The 2nd Circuit issued its mandate on that decision Monday. While Friday’s letter to the court didn’t say why ISPs wouldn’t seek rehearing, the industry groups previously told the court they were working toward an agreement with the state that would make a rehearing petition unnecessary (see 2406060038). In a joint statement Monday, the associations said they agreed not to seek rehearing because Attorney General Letitia James (D) agreed to “suspend enforcement of this law while the courts consider the litigation in this case.” The ISP groups said they “continue to support state and federal measures that foster broadband affordability without requiring rate regulation.” While the groups won’t seek rehearing by the 2nd Circuit, they could still seek U.S. Supreme Court review by the end of July. However, the industry groups expect a 6th Circuit ruling before that deadline -- possibly in the next three weeks -- on the FCC’s order reclassifying broadband as a Title II service, said an industry lawyer involved in the appeals process. The 6th Circuit ruling would affect how ISPs proceed on their challenge to the New York law because the 2nd Circuit decision was based on broadband as Title I, the lawyer said. If the 6th Circuit stays the FCC order, preserving a Title I world, industry would likely appeal the 2nd Circuit decision to the Supreme Court, the source said. However, if there isn’t a stay and the Title II order takes effect, industry could instead file a fresh lawsuit at the district court challenging the New York law under the Title II regime, the attorney said. AG James agreed not to enforce the state law until Aug. 21 or 14 days after a potential 6th Circuit stay of the FCC order, the attorney said. New York’s AG office referred us to the New York Public Service Commission for comment. However, a PSC spokesperson said the commission doesn’t comment on pending litigation.
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 telemarketing fraud suit filed May 23, 2023, by 48 states and the District of Columbia against VoIP service provider Avid Telecom for allegedly facilitating illegal robocall traffic on its network (see 2305230065), “does not contain a scintilla of evidence” that Avid ever initiated "even a single illegal robocall,” said the defendant's answer (docket 4:23-cv-00233) to the complaint Friday in U.S. District Court for Arizona in Tucson. Nor does the complaint have evidence that Avid knew “that any of the calls that it received from an originating aggregator or carrier was an illegal robocall," it said.
ATSC honors Sung-Ik Park of Korea’s Electronics and Telecommunications Research Institute with its Mark Richer industry leadership medal, and Ali Dernaika of Hewlett Packard Enterprise with its Bernard Lechner outstanding contributor award ... American Advertising Federation announces Jack Bamberger, TikTok U.S. general manager-agency business, as chair, and Jacki Kelley, IPG executive vice president-chief client officer and chief business officer, as vice chair, both effective July 1; Bamberger moves up from vice chair to succeed Helen Lin ... VideoAmp, media measurement company, promotes Sharon Lee to executive vice president-general counsel and Claudia-Celine Schachter to executive vice president-finance and people, and hires former Fox Broadcasting and NBCUniversal executive Melva Goffney Benoit as vice president-content sports and sales ... Redwire, space infrastructure company, taps Virgin Galactic’s Aaron Futch, also former Intelsat, as executive vice president-general counsel and secretary ... Intracom Telecom Group hires Kyriakos Vergos, ex-Codium Networks, as chief commercial officer.
T-Mobile seeks the reversal of the “unreasonable and unsupportable denial” by Wanaque, New Jersey, and its planning board of the carrier’s applications for preliminary and final site plan approval for the installation of a 120-foot monopole cell tower, said its Telecommunications Act complaint Thursday (docket 2:24-cv-07001). The tower is necessary to remedy a significant gap in reliable wireless service and is the least intrusive means to do so, said the complaint, filed in the U.S. District Court for New Jersey. The denial of the applications “materially inhibits” the provision of personal wireless and telecommunications services, the complaint said. The borough and the planning board unreasonably denied the applications without substantial evidence contained in the administrative record, it said. They also failed to support their denial with a written decision within a reasonable period of time, it said. They illegally based their decisions on the environmental effects of RF emissions, which warrants injunctive relief mandating that the borough and its planning board issue all required approvals for the construction of the tower, it said. T-Mobile seeks a declaratory judgment that the denial of the applications is preempted by federal law and by FCC regulations and orders, and is unlawful under New Jersey state law, it said.
The Justice Department is trying to avoid public attention to and judicial scrutiny of its conduct, Vermont National Telephone (VTEL) told the U.S. District Court for the District of Columbia last week as it argued for an oral hearing on DOJ's motion to dismiss. In a reply in support of its motion for an oral hearing (docket 1:15-cv-00728), VTEL said the court can't follow DOJ's argument that the issue can be decided based on the parties' written submissions, since DOJ hasn't submitted evidence supporting its dismissal decision. DOJ is seeking dismissal of relator VTEL's litigation against Dish Network designated entities (DE) Northstar Wireless and SNR Wireless over allegations of fraud in the FCC's 2015 AWS-3 auction (see 2403040052). In a reply in support of its motion to dismiss this month, DOJ said there's a lack of evidence Dish and the DEs failed to make a material disclosure to the FCC as well as a lack of damages. It said VTEL hasn't contested that Dish and the DEs paid full price for every license they received as they were never awarded any bidding credits. "Given the extensive written submissions by the parties (with Relator filing hundreds of pages on this issue), the United States respectfully submits that such a hearing is not necessary here," DOJ said. In a statement, EchoStar's Dish said VTEL's fraud claim case "has always been frivolous, and the DOJ was absolutely justified in moving to dismiss it." It said VTEL's allegations of political interference "are false and baseless."
Responses are due Monday at the 6th U.S. Circuit Appeals Court on the FCC's motion transferring the consolidated challenges to the commission's net neutrality order to the D.C. Circuit (see 2406100044|), a case manager’s letter said Thursday (dockets 24-3449, 24-3450, 24-3497, 24-3507, 24-3508). Responses to ISPs’ motion to stay agency judgment (see 2406110073) are due Tuesday, the letter said. Friday is the deadline for replies to the responses to either motion, it said.
The Benton Institute for Broadband & Society supported the FCC’s request that the 6th U.S. Circuit Appeals Court move a challenge to the FCC’s net neutrality order to the D.C. Circuit (see 2406100044). A lottery chose the 6th Circuit to hear the case. Yet Benton said the law governing random selection by the Joint Panel on Multidistrict Litigation “merely provides a means for determining which court will initially administer the proceeding, including determining the appropriate venue for its ultimate disposition.” Benton argued that “few cases are as deeply tied” to a particular circuit as net neutrality is to the D.C. Circuit: “Since 2008, the core legal issues presented here have been presented to the D.C. Circuit in five successive cases.” Benton noted that a 2020 FCC order responding to a remand of the 2018 net neutrality order remains before the D.C. Circuit. Groups that brought the challenge say it should remain before the 6th Circuit (see 2406110073).
Education in 2024 “bears very little resemblance to education in previous decades,” and advances in technology have “transformed the pattern of classwork and homework,” said the Schools, Health & Libraries Broadband Coalition in a 5th U.S. Circuit Appeals Court amicus brief Tuesday (docket 23-60641). The brief backs the FCC’s Oct. 25 declaratory ruling authorizing E-rate funding for Wi-Fi on school buses (see 2312200040).
The U.S. Supreme Court denied the Jan. 5 cert petition of Consumers’ Research challenging the FCC's method for determining the USF quarterly contribution factor (see 2401100044), a docket entry Monday said (docket 23-743). The petition asked SCOTUS to review a Dec. 14 decision of the 11th U.S. Circuit Court of Appeals upholding the Q4 2022 contribution factor (see 2312140058).