TracFone and Verizon moved separately Friday to dismiss the complaint of Team Marketing and its allegations over false claims that the Lifeline distributor paid field agents on commission, a practice barred by the FCC Lifeline program (see 2402160016), said the TracFone and Verizon motions (docket 1:24-cv-20600) in U.S. District Court for Southern Florida in Miami. The complaint alleges that Team Marketing entered into an agreement with TracFone in May 2022 under which Team Marketing would establish retail locations in designated territories to sign up customers for TracFone telecommunications services, supported by Lifeline for eligible customers. It alleges that TracFone and Verizon breached the agreement by terminating it in such a way that didn’t comply with its termination provisions. “But even a cursory review” of the agreement reveals that Verizon isn’t a party to it, said Verizon’s motion to dismiss. Team Marketing’s sole claim against Verizon for breach of contract “fails to state a claim upon which relief can be granted,” it said. Verizon isn’t a party to the contract that the plaintiff “conclusorily alleges” Verizon breached, and that “lack of privity” dooms the complaint, it said. TracFone also is seeking dismissal for failure to state a claim upon which relief can be granted, said its motion. The plaintiff asserts one claim against TracFone, that it breached its contract by terminating their agreement without providing the plaintiff with adequate notice and an opportunity to cure, it said. But even taking the plaintiff’s factual allegations as true, TracFone “fully complied with the contractual provision permitting TracFone to terminate immediately, without prior notice or an opportunity to cure,” for the plaintiff’s “failure to adhere to federal law in connection with its performance under the agreement,” it said. Even if notice and a cure opportunity had been required under a separate provision of the agreement, the complaint makes clear that TracFone also satisfied those requirements, it said. The complaint “therefore should be dismissed,” it said.
The National Religious Broadcasters and the American Family Association filed a joint petition for review asking that the 5th U.S. Circuit Court of Appeals overturn the FCC’s February Equal Employment Opportunity order. The EEO order requires that broadcasters file workforce diversity information with the agency using Form 395-B. The Media Bureau issued a public notice Monday announcing that the EEO order would take effect June 3 but said the compliance date hasn't yet been set because the information collection is still under the OMB Paperwork Reduction Act. The bureau will issue a subsequent PN announcing the compliance date, it said. The form was "suspended for 20 years for good reason and revived on highly questionable grounds,” NRB President Troy Miller said in a release late Friday. Requiring the information to be public and attributable to individual broadcasters, the FCC is “opening the door to third-party weaponization of the public file to target specific broadcast stations,” NRB said. The EEO order “violates the equal protection component of the Fifth Amendment and the Free Speech Clause of the First Amendment,” said the brief petition. Bringing back Form 395-B exceeds the FCC’s authority and is “an abuse of discretion,” the order said. America First Legal Foundation, a litigation nonprofit led by Stephen Miller, adviser of former President Donald Trump, is representing NRB and AFA in the case. It often represents conservative causes and entities. The petition for review comes on top of two appeals of the order filed at the FCC by religious broadcasters and groups objecting to the planned updating of Form 395-B to recognize nonbinary gender (see 2405010070).
Indian Peak Properties seeks to vacate the FCC’s March 7 order denying its petitions for declaratory ruling, said its petition for review Monday (docket 24-1108) in U.S. Appeals Court for the D.C. Circuit. Indian Peak's petitions had sought a federal preemption under the commission’s over-the-air reception devices (OTARDs) rule of a decision by Rancho Palos Verdes, California, to revoke, under local ordinances, the company’s conditional use permit for the deployment of rooftop antennas on a local property. The FCC’s order denying Indian Peaks that relief was premised on a new “human presence” rule for OTARDs, the petition said. That means FCC staff found that Indian Peak failed to plead facts sufficient to establish a regular human presence at the property where the antennas were deployed. But such a “substantive rule” under the Administrative Procedure Act requires a notice-and-comment rulemaking to be legal and effective, said Indian Peak's petition. But “no notice was given, and the public was afforded no opportunity to comment on the new rule,” it said. Instead, the order announced this rule when it denied Indian Peak’s application for review before the commission, it said. The order also upholds FCC staff’s refusal to declare a proceeding, and hold in abeyance state court litigation, it said, The order thus “upholds staff’s violations of FCC rules of procedure,” it said. With its appeal, Indian Peak seeks reversal of these “arbitrary and capricious agency actions that are contrary to law,” and remand to the FCC “for treatment not inconsistent” with the D.C. Circuit’s opinion, it said. On remand and with the FCC’s grant of Indian Peak’s petitions, the local zoning ordinance would be preempted, and the company would be able to replace the disputed antennas on the rooftop of the property, it said.
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.
Twenty Republican attorneys general support the 20 industry petitioners asking the 8th U.S. Circuit Court of Appeals to vacate the FCC’s digital discrimination order on grounds it exceeds agency authority and lacks clear congressional intent (see 2404230032). The AGs made their argument in an amicus brief Thursday (docket 24-1179).
The American Civil Rights Project supports the 20 industry petitioners arguing that the 8th U.S. Circuit Appeals Court should vacate the FCC’s digital discrimination broadband rule since it runs afoul of the law and isn’t based on clear congressional intent (see 2404230032), according to the nonprofit’s amicus brief. It was filed Wednesday in docket 24-1179.
Vermont’s net neutrality law seems in good shape legally following two significant, late-April decisions by the FCC and the 2nd U.S. Circuit Court of Appeals, said experts on the statute. ISP groups must decide what to do with their 2018 lawsuit at U.S. District Court of Vermont now that the case can resume following the 2nd Circuit ruling.
The FCC’s April 24 opposition to Essential Network Technologies and MetComm.Net's petition challenging the authority of the FCC and the Universal Service Administrative Co. to withhold reimbursement of discounts for IT and broadband services that the companies provided to schools confirms that the petition should be granted, the petitioners’ reply said. It was filed Wednesday (docket 24-1027) at the 8th U.S. Circuit Court of Appeals. Discounts on IT and broadband services come under Section 254 of the Communications Act (see 2404250028). The FCC calls the mandamus relief that the petitioners seek to force the reimbursements a drastic remedy that should be invoked only in extraordinary circumstances. In cases such as this, involving claims of unreasonable agency delay, mandamus is warranted only when delays are egregious, the agency said. But under “the first mandamus factor,” for a remedy in this case to be adequate, “it must enable the numerous schools in this case to complete their IT projects before the next school year,” said the petitioners’ reply. If the FCC doesn’t render a decision and provide funding before the summer, “many schools will be unable to move forward with vital IT projects and hundreds of students will be deprived next school year of the IT infrastructure necessary for a modern education,” it said. Compensatory relief after years of litigation, as the FCC suggested, doesn’t provide an adequate remedy that would prevent this harm to the public, “which after next year would become irreversible in the absence of immediate mandamus relief,” it said. The agency contends that in light of evidence showing that the petitioners may have had an improper relationship with the schools they were servicing, USAC investigated that possible misconduct, but expects those probes will be finished by the end of May. But that expectation “provides little solace when USAC lacks any authority to address the legal issues in this case and there is no time limit for an FCC decision,” said the petitioners’ reply. The agency’s opposition doesn’t indicate when the FCC will render a decision or whether the schools will receive funds before next school year, it said. Under the second mandamus factor, there’s a clear and indisputable right under Section 254 to the particular relief sought, it said. The Fifth Amendment also establishes a clear and indisputable right to due process, which required a “timely deprivation hearing” either before or after Essential and MetComm were deprived of their “statutory entitlement to reimbursement,” it said. The FCC has a “clear duty” to report its deprivation decision in writing, it said.
The FCC’s digital discrimination rule “has gone far beyond what Congress intended” when it enacted the Infrastructure Investment and Jobs Act, the National Association of Manufacturers said in an amicus brief Tuesday (docket 24-1179) in the 8th U.S. Circuit Court of Appeals. The brief supports the 20 industry petitioners that want the rule vacated as unlawful in part, they say, because the FCC imposed it without clear congressional intent (see 2404230032).
Telecom industry groups get until May 24 to seek rehearing of the 2nd U.S. Circuit Court of Appeals decision to uphold New York’s Affordable Broadband Act, said an order Tuesday (docket 21-1975). The court responded to a Monday motion by New York State Telecommunications Association, CTIA, USTelecom and other plaintiffs seeking a two-week extension “to file a petition for rehearing and / or rehearing en banc” (see 2404300015). The rehearing motion would otherwise have been due May 10. The 2nd Circuit ruled Friday that federal law doesn’t preempt the New York law under Communications Act Title I classification of broadband (see 2404260051). But on Thursday, the FCC voted 3-2 to reclassify broadband as Title II (see 2404250004).