A provision in the Multichannel Video Programming and Communications Services Tax (the Telecom Tax) prohibiting “every political subdivision of the state” from collecting franchise fees or taxes on franchises subject to the Telecom Tax is unconstitutionally void as applied to protesting cities.Four Kentucky cities and the Kentucky League of Cities, Inc. (collectively, Cities) filed a petition for declaratory relief alleging that the Telecom Tax’s Prohibition Provision violated their right to grant franchises and to collect franchise fees as provided in sections 163 and 164 of the Kentucky Constitution. The circuit court dismissed the petition. The court of appeals vacated the judgment of the circuit court and remanded, concluding that the Telecom Tax’s Prohibition Provision violated sections 163 and 164. The Supreme Court affirmed, holding that the Telecom Tax’s Prohibition Provision was unconstitutionally void as applied to the Cities. View "Kentucky CATV Ass’n v. City of Florence" on Justia Law

Petitioners challenged the Commission's order that set permanent rate caps and ancillary fee caps for interstate inmate calling services (ICS) calls. After the presidential inauguration in January 2017, counsel for the FCC advised the court that, due to a change in the composition of the Commission, "a majority of the current Commission does not believe that the agency has the authority to cap intrastate rates" under section 276 of the Communications Act of 1934. Consequently, the DC Circuit granted in part and denied in part the petitions for review, remanding for further proceedings. The court also dismissed two claims as moot. The court held that the order's proposed caps on intrastate rates exceed the FCC's statutory authority under the Telecommunications Act of 1996 Act; the use of industry-averaged cost data as proposed in the Order was arbitrary and capricious because it lacked justification in the record and was not supported by reasoned decisionmaking; the order's imposition of video visitation reporting requirements was beyond the statutory authority of the Commission; and the order's proposed wholesale exclusion of site commission payments from the FCC's cost calculus was devoid of reasoned decisionmaking and thus arbitrary and capricious. View "Global Tel*Link v. FCC" on Justia Law

Plaintiff segTEL, Inc. was a telecommunications company that owned and/or operated a fiber optic cable network throughout New Hampshire, including within the City of Nashua. It did not own any poles or conduits within the City, and did not have its own license from the City authorizing its occupation of the City’s rights of way. Instead, pursuant to pole attachment agreements with the utility providers, the plaintiff remitted a fee to the utility providers in exchange for the right to place its fiber optic cables on their poles and conduits. These pole attachment agreements did not require the plaintiff to pay property taxes assessed by the City. Having become aware of plaintiff’s use of the utility providers’ poles and conduits, the City in 2014 assessed plaintiff property taxes of $1,507.94 for its use of the City’s rights of way. Plaintiff applied for an abatement, which the City denied. Thereafter, plaintiff brought this action in superior court, seeking: (1) a declaratory judgment that the City was not entitled to impose the tax; and (2) to strike the City’s 2014 tax assessment. The trial court granted summary judgment to plaintiff, ruling that “[b]ecause [the plaintiff] has not entered into an agreement in which it consented to be taxed,” the City could not lawfully tax the plaintiff for its use and occupation of the City’s rights of way. The City appealed, and finding no reversible error in the trial court’s judgment, the New Hampshire Supreme Court affirmed. View "Segtel, Inc. v. City of Nashua" on Justia Law

Higher Society, a nonprofit advocating for the legalization of marijuana, wants to hold a rally on the steps of the Tippecanoe County Courthouse in Lafayette, Indiana. In 1999, in response to controversy over a nativity scene on the courthouse grounds, the County Board of Commissioners declared the grounds a “closed forum,” so that: Only displays and events sponsored and prepared by a department or office of county government will be allowed in the windows … or on the grounds. The county has previously sponsored art fairs, a rally for the League of Women Voters, an event for the Fraternal Order of Police, and events related to child abuse awareness, “gun sense,” Planned Parenthood, Syrian refugees, and prevention of bullying, but declined to sponsor Higher Society. The organization obtained a preliminary injunction in the district court. The Seventh Circuit affirmed. The policy restricts private speech and is not viewpoint-neutral, so it likely violates the First Amendment. View "Higher Society of Indiana v. Tippecanoe County" on Justia Law

At issue was whether an order form faxed to a doctor by a company that supplies a medical product purchased by that doctor's patient constitutes an "unsolicited advertisement" within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227(a)(5). The Eleventh Circuit affirmed the dismissal of the complaint, agreeing with the district court that faxes were not "unsolicited advertisements." The court held that the faxes in this case did not promote the sale of Arriva products and thus they were not unsolicited advertisements. In this case, each fax related to a specific order already placed by a patient of the clinic and requested only that the doctor of the patient fill out an order form to facilitate a purchase made by the patient. View "The Florence Endocrine Clinic v. Arriva Medical" on Justia Law

The Montana Public Service Commission, which requires that certain regulated telecommunications companies publicly disclose the salary information of their executive or managerial employees earning more than $100,000 per year, denied the motions for protective orders filed by Southern Montana Telephone Company and Lincoln Telephone Company to keep the salary information confidential. The district court affirmed. The Supreme Court reversed, holding that the Commission’s “rubric,” by which the Commission judged companies’ motions for protective orders of employee compensation information, constituted a de facto rule within the meaning of the Montana Administrative Procedure Act (MAPA) and that the Commission was obligated to comply with MAPA’s rulemaking procedures before implementing the rubric. View "Southern Montana Lincoln Telephone Co. v. Montana Public Service Commission" on Justia Law

Neustar petitioned for review of the FCC's orders naming another company, Telcordia, to replace it as the Local Number Portability Administrator (LNPA). The DC Circuit held that it had jurisdiction to hear Neustar's petition; the Order did not qualify as a rule, and there was no requirement of notice-and-comment rulemaking when selecting the LNPA; neither the FCC's neutrality determination nor its cost analysis was arbitrary and capricious; and the FCC's Best and Final Offers (BAFO) determination was not arbitrary and capricious. Because the court found no error in the FCC's decision, the court denied the petitions for review. View "Neustar, Inc. v. FCC" on Justia Law

Plaintiff DirecTV, Inc. appealed a superior court decision denying a petition for property tax abatement for the tax years 2007, 2008, and 2009. The property at issue was located in New Hampton and used by DirecTV as a satellite uplink facility. On appeal, DirecTV argued that the trial court erred when it: (1) ruled that satellite antennas and batteries used to provide backup power constituted fixtures; and (2) determined the value of the property. The New Hampshire Supreme Court concluded after review that the antennas and batteries were not fixtures, and therefore, taxable as real estate. The Court reversed the superior court on that issue, vacated its decision on the valuation of the property, and remanded for further proceedings. View "DirecTV, Inc. v. Town of New Hampton" on Justia Law

A Harrisburg, Pennsylvania ordinance prohibits persons to “knowingly congregate, patrol, picket or demonstrate in a zone extending 20 feet from any portion of an entrance to, exit from, or driveway of a health care facility.” Individuals purporting to provide “sidewalk counseling” to those entering abortion clinics claimed that the ordinance violated their First Amendment rights to speak, exercise their religion, and assemble, and their due process and equal protection rights. The court determined that the ordinance was content-neutral because it did not define or regulate speech by subject-matter or purpose, so that intermediate scrutiny applied, and reasoned that it must accept as true (on a motion to dismiss) claims that the city did not consider less restrictive alternatives. The claims proceeded to discovery. In denying preliminary injunctive relief, the court ruled that plaintiffs did not demonstrate a likelihood of success on the merits. The Third Circuit vacated. In deciding whether to issue a preliminary injunction, plaintiffs normally bear the burden of demonstrating likelihood of prevailing on the merits. In First Amendment cases where the government bears the burden of proof on the ultimate question of a statute’s constitutionality, plaintiffs must be deemed likely to prevail for purposes of considering a preliminary injunction unless the government has shown that plaintiffs’ proposed less restrictive alternatives are less effective than the statute. View "Reilly v. City of Harrisburg" on Justia Law

Reporting regulatory violations “up the chain” to supervisory governmental employees can constitute speech on a matter of public concern, for purposes of First Amendment retaliation claim. Mayhew, a long-time employee of Smyrna’s wastewater-treatment plant, reported violations of state and federal requirements and voiced concerns about the hiring of a manager’s nephew without advertising the position. His reports went up the chain of command to government employees. Mayhew was terminated, allegedly because the plant manager no longer felt that he could work with him. The district court rejected his claim of First Amendment retaliation on summary judgment, reasoning that Mayhew’s speech did not involve matters of public concern. The Sixth Circuit reversed in part, stating that “constitutional protection for speech on matters of public concern is not premised on the communication of that speech to the public.” Nor must courts limit reports of wrongdoing to illegal acts; a public concern includes “any matter of political, social, or other concern to the community.” View "Mayhew v. Town of Smyrna" on Justia Law