TechFreedom urged the FCC not to use an “obscure provision” on digital discrimination, buried deep in the “enormous” Infrastructure Investment and Jobs Act, to “smuggle onerous common-carrier regulations” onto the internet. TechFreedom’s position was detailed as part of an amicus brief Tuesday (docket 24-1179) in the 8th U.S. Circuit Court of Appeals.
Industry groups might seek rehearing of the 2nd U.S. Circuit Court of Appeals decision to uphold New York state’s Affordable Broadband Act (case 21-1975). The New York State Telecommunications Association, CTIA, USTelecom and other plaintiffs filed a Monday motion seeking until May 24 “to file a petition for rehearing and / or rehearing en banc.” Such a petition is usually due in 14 days (May 10), but “good cause” exists to grant a two-week extension, the industry groups said. For one thing, the FCC ruled on net neutrality the day before the court’s decision came out and the final text isn’t yet available, they said. 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).
NTCA takes special interest in the impact of the FCC’s Nov. 20 digital discrimination order on its small-business members, the association’s amicus brief argued in the 8th U.S. Circuit Appeals Court (docket 24-1179) said Monday. The brief supports the 20 industry petitioners that want the order vacated as unlawful (see 2404230032). The “potential adverse effects” of the order implementing Section 60506 of the Infrastructure Investment and Jobs Act “risk particular impact to small businesses that generally lack access to resources and economies of scale that can enable larger businesses to absorb substantial market or regulatory changes,” NTCA’s brief said. But those impacts “are neither envisioned nor authorized by the statute, whose language contemplates a far more limited scope of implementation,” it said. Compliance with certain of the standards presented in the FCC’s order “is effectively impossible since the processes by which those measures can be achieved are wholly inconsistent with the normal and ordinary practices within which NTCA members conduct their business,” it added. The standards contemplate the ability of small private businesses “to have access to the confidential business considerations of other businesses,” it said: “This result, too, is neither contemplated nor accommodated in the statutory language.” The 8th Circuit should hold the order as "unlawful" and set it aside, said NTCA.
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.
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.
FCC announces staff changes: Office of Internal Affairs’ Nese Guendelsberger becomes acting legal adviser-wireless to Commissioner Geoffrey Starks, succeeding Shiva Goel (see 2404250030 and 2404240059); Marco Peraza, wireline adviser to Commissioner Nathan Simington, leaves to become attorney adviser to FTC Commissioner Andrew Ferguson; and Darryl Cooper of the Disability Rights Office and Pamela Smith of the Office of General Counsel, retiring … Shutts & Bowen hires Patricia Flanagan, ex-Fox Rothschild, as partner-trademark and copyright … First Orion promotes former Samsung executive Joe Stinziano to president-CEO, effective May 1, succeeding Charles Morgan, who continues as chairman … DZS, broadband networking and AI-driven cloud software provider, appoints ADVA’s Scott St. John as chief customer officer … Aqua Security cloud native security company taps Mike Dube, ex-CrowdStrike, as chief revenue officer ... LoanDepot hires Jeff Wilkish, ex-Movement Mortgage, as regional vice president-New England ... IonQ, quantum computing company, names President-CEO Peter Chapman chairman and former Broadcom Chief Financial Officer Harry You lead independent director, both effective with the close of IonQ’s June 5 annual meeting.
The 9th U.S. Court of Appeals agreed with a lower court that denied preliminary injunction against the California Public Utilities Commission shifting to a per line surcharge for the state Universal Service Fund. T-Mobile’s Assurance Wireless had argued that the state must align with the FCC’s revenue-based method for federal USF. But on March 31 last year, the U.S. District Court for Northern California decided not to block the CPUC’s April 1 change. The 9th Circuit heard arguments on an appeal in October (see 2310170042). "The carriers have failed to show a likelihood of success on their claim that the access line rule is 'inconsistent with' the FCC rule,” Judge Ryan Nelson wrote in Friday’s opinion, which Judges Jacqueline Nguyen and Eugene Siler joined (case 23-15490). The court referred to the Communications Act's Section 254(f), which prohibits USF rules that are "inconsistent" with FCC rules. Inconsistent doesn’t mean different, Nelson wrote. "The access line rule differs from the FCC’s rule funding interstate universal service programs. But the carriers have not shown that it burdens those programs, and they have thus failed to show that they are likely to succeed on their claim that it is inconsistent with those rules." Also, the court rejected T-Mobile’s claim that the surcharge rule is preempted because it's inequitable and discriminatory. "The carriers argue that they are harmed more than local exchange carriers,” but the CPUC rule treats all telecom technologies “the same and, if anything, is more equitable than the prior rule, under which most of the surcharges came only from ever-dwindling landline services,” Nelson said. The CPUC’s "course correction" is "a fair response to a real problem,” he added. “In a world of ever-evolving telecommunications technologies, competitive neutrality must allow some play in the joints. To hold otherwise would hamstring California’s ability to satisfy its statutory mandate of providing universal service." T-Mobile also argued the change was discriminatory because the CPUC rule treats providers who get federal affordable connectivity program (ACP) support differently from those in the state LifeLine program. But the court found differences between the programs and noted that companies in ACP have the option of joining LifeLine. The decision "affirms that the CPUC's surcharge rule is consistent with federal law," said a commission spokesperson. "The CPUC will continue to utilize the surcharge to ensure consumers have safe, reliable, affordable, and universal access to telecommunications services." T-Mobile didn’t immediately comment.
Federal law doesn't preempt New York state’s Affordable Broadband Act (ABA), the 2nd U.S. Circuit Court of Appeals decided Friday. In a 2-1 opinion, the court reversed the U.S. District Court for Eastern New York, which had barred the state from enforcing the 2021 Affordable Broadband Act (ABA). The ABA required $15 monthly plans providing 25 Mbps download and 3 Mbps upload speeds for qualifying low-income households.
The U.S. Appeals Court for the D.C. Circuit should deny Essential Network Technologies and MetComm.Net's Feb. 14 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 two companies provided to schools under Section 254 of the Communications Act (see 2402200044), said the FCC’s opposition Wednesday (docket 24-1027).
Standard General and its founder Soohyung Kim filed a civil complaint Wednesday charging that Allen Media CEO Byron Allen, Dish CEO Charlie Ergen and FCC Chairwoman Jessica Rosenworcel, along with lawmakers, unions and public interest groups, were partners in a conspiracy and race discrimination aimed at sinking Standard's $8.6 billion purchase of Tegna last year (see 2306010077). The filing was made in U.S. District Court for the District of Columbia. “The FCC Chairwoman and her personal staffer blocked the deal at the behest of Mr. Allen, who used business allies and six-figure political donations to destroy Mr. Kim’s chances of acquiring TEGNA,” the complaint said.