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.
Americans “detest” calls they didn’t ask for, but the Insurance Marketing Coalition’s challenge of the FCC’s Dec. 18 order implementing rules under the Telephone Consumer Protection Act to target and eliminate illegal robotexts (see 2312220059) “is not a case about unsolicited calls,” according to the coalition’s opening brief Wednesday (docket 24-10277) in the 11th U.S. Circuit Appeals Court.
An Alabama city's moratorium preventing Brightspeed from installing the aerial portion of its fiber optic network to make the network operable for high-speed broadband service violates the Communications Act, state law and “basic principles of legal equity,” alleged Brightspeed's complaint Wednesday (docket 1:24-cv-00156) in U.S. District Court for Southern Alabama.
Incorporation by reference “is a longstanding practice that allows an agency to refer, in the text of a published rule, to material available elsewhere instead of republishing that material in the rule itself,” the FCC’s respondent brief said. It was filed Monday (docket 23-1311) in the U.S. Appeals Court for the D.C. Circuit. It opposes the petition for review challenging the agency's RF equipment testing order.
All three 11th U.S. Circuit Court of Appeals judges hearing oral argument Wednesday on Gray Television’s appeal of a $518,000 FCC forfeiture order seemed skeptical of the agency’s rationale for the penalty amount but split on Gray’s arguments against the FCC’s authority over deals for TV station network affiliation.
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The Texas Association of Broadcasters filed a petition for review Thursday (docket 24-60226) in the 5th U.S. Circuit Court of Appeals challenging the FCC’s gathering of equal employment opportunity workforce diversity data. TAB's filing alleges the agency, through its Feb. 22 EEO order, “seeks to deputize private activists to pressure” broadcasters to “achieve the FCC’s long-held goal of imposing race and gender quotas on broadcast stations.” The order violates broadcasters' constitutional rights and is arbitrary and capricious, the petition said. The TAB appeal joins another filed in the 5th Circuit earlier this month by the National Religious Broadcasters and the American Family Association (see 2405060057). In addition, groups of religious broadcasters, including the Catholic Radio Association, filed several applications for review (see 2405010070).
AT&T says the FCC should vacate a recent forfeiture order against the company on grounds that it’s arbitrary, capricious and an abuse of discretion within the meaning of the Administrative Procedure Act, said its petition for review Thursday (docket 24-60223) in the 5th U.S. Circuit Court of Appeals. In the April 29 order, the FCC imposed a $57.3 million penalty for AT&T’s violations of Section 222 of the Communications Act and commission regulations governing treatment of customer proprietary network information (CPNI). It found that AT&T failed to use reasonable measures for discovering and protecting against attempts to gain unauthorized access to customer location information. However, AT&T said as a “threshold matter,” the location data isn’t CPNI within the meaning of Section 222. Accordingly, the company's petition for review said the FCC lacked statutory authority to issue the order. “At a minimum,” by first announcing its “novel and expansive interpretation” of Section 222 in its enforcement proceeding and “retroactively punishing” the carrier for conduct preceding that announcement, the FCC “failed to provide the fair notice that AT&T was due,” it said. Even assuming otherwise, the agency’s finding that AT&T acted unreasonably in discovering and protecting against unauthorized access to customers’ location data is arbitrary and capricious, it added. The imposition of a $57.3 million penalty based on the existence of 84 distinct location-based-services providers, despite zero breaches by those providers, “defies law and logic,” it said. The FCC “has long lauded the valuable and sometimes life-saving benefits of location-based services, the growth of which AT&T has facilitated by implementing industry-leading data security safeguards,” the petition said. Yet the order “takes the nonsensical position that AT&T should have abruptly cut off access to customer location data in response to a news report of a single provider’s misuse,” of which the FCC had been aware for a year, “and despite the absence of any evidence that AT&T customers’ information was subject to unlawful use,” it said. The agency’s enforcement regime also “runs afoul” of the Constitution, the petition argued. Rather than grant a hearing to an alleged violator, it may elect to issue a notice of apparent liability, pass judgment on its own proposed liability finding and penalty, and then demand payment as a prerequisite to an appeal, the petition said: “That regime violates due process, Article III, the Seventh Amendment, and the nondelegation doctrine.”
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.
Verizon and TracFone Wireless seek the dismissal of Team Marketing Group’s one-count complaint for breach of contract, as the plaintiff fails to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), said their joint motion Thursday (docket 1:24-cv-20600) in U.S. District Court for Southern Florida in Miami.