Justia Communications Law Opinion Summaries

After the FCC determined that incumbents no longer dominated the telecommunications market because of the plethora of competitor modes of voice transmission, the FCC exercised its statutory authority to forbear from enforcing the wholesale pricing requirement and one element of the unbundling requirement.The DC Circuit denied petitions for review challenging the propriety of the FCC's forbearance of the wholesale price requirements and challenging the forbearance of the unbundling requirement. The court concluded that the Commission looked reasonably at the whole national market for voice transmission and how the incumbents' share of that market is declining rapidly; the Commission was reasonable to focus on the national market when making national policy; and, while the Commission's order did not explicitly address the availability of broadband in rural areas, it clearly stated that it only granted forbearance as to "price cap" incumbents. The court noted that the Commission justified its forbearance policy by stating that it would induce incumbents and insurgents to develop more advanced networks. In regard to the forbearance of the unbundling requirement, the Commission's reasoning largely coincides with its justification for forbearing from enforcing the wholesale requirement. Given that CPUC effectively conceded that greater consideration of public safety would not change the outcome, the court did not think that a remand on this issue was necessary. Finally, the court rejected the remaining administrative law challenges. View "COMPTEL v. Federal Communications Commission" on Justia Law

Vermont National Telephone Company (VNT) appealed the state Commissioner of Taxes’ determination that, pursuant to Department of Taxes Regulation section 1.5833-1, the capital gain VNT earned from the 2013 sale of two Federal Communications Commission telecommunications licenses was subject to Vermont Tax. Additionally, VNT argued the penalty the Commissioner assessed for VNT's failure to report the 2013 sale violated 32 V.S.A. section 3202(b)(3) and the state and federal Constitutions. Finding no reversible error, the Vermont Supreme Court affirmed the Commissioner. View "Vermont National Telephone Company v. Department of Taxes" on Justia Law

Herman regularly attends Los Angeles and Pasadena city meetings and has been removed more than 100 times. Herman At a public hearing on April 17, 2019, Herman said, “Fuck" Los Angeles Deputy City Attorney Fauble and gave Fauble’s address. At an April 29 meeting, Herman, in a threatening manner, again disclosed Fauble’s Pasadena address. Herman also submitted speaker cards; one had a swastika drawn on it, another had a drawing of a Ku Klux Klan hood with figures that were either an “SS” or lightning bolts above Fauble’s name. On May 1, Herman attended another meeting and stated, “I’m going back to Pasadena and fuck with you.”The city sought a workplace violence restraining order under Code of Civil Procedure 527.8, precluding Herman from harassing, threatening, contacting, or stalking Fauble or disclosing his address, and requiring Herman to stay at least 10 yards away from Fauble while attending meetings. At a hearing, Herman explained that he made the statements because he was upset about a change in the council rules and with his own homelessness. He denied intending to threaten Fauble. The court of appeal affirmed the entry of a restraining order, rejecting a First Amendment challenge. There was substantial evidence that Herman’s threatening conduct was reasonably likely to recur and that Herman’s statements would have placed a reasonable person in fear for his safety, regardless of Herman’s subjective intent. The credible threats of violence were not constitutionally protected. View "City of Los Angeles v. Herman" on Justia Law

Federal law does not facially preempt California law governing universal service contributions from prepaid wireless providers. Federal law requires telecommunications providers, including wireless providers such as MetroPCS, to contribute to the federal Universal Service Fund, which helps provide affordable telecommunications access. California requires its own universal service contributions, adopting the Prepaid Mobile Telephony Services Surcharge Collection Act in 2014, which (prior to its recent expiration) governed the collection of surcharges from prepaid wireless customers. The CPUC issued resolutions implementing the Prepaid Act that required providers of prepaid services to use a method other than the three FCC recognized methods to determine the revenues generated by intrastate traffic that were subject to surcharge. MetroPCS filed suit challenging the CPUC's resolutions.The panel held that the expiration of the Prepaid Act did not cause this case to become moot and that the panel therefore has jurisdiction to reach the merits of MetroPCS's preemption claim. On the merits, the panel held that preemption is disfavored because there was a dual federal-state regulatory scheme and a history of state regulation in the area of intrastate telecommunications. In this case, the CPUC resolutions are not facially preempted by the Telecommunications Act and related FCC decisions. The panel rejected MetroPCS's argument that the resolutions conflict with the requirement of competitive neutrality by depriving prepaid providers (but not postpaid providers) of the "right" to calculate intrastate revenues in a way that avoids assessing the same revenues as federal contribution requirements. Furthermore, the panel rejected MetroPCS's argument that because prepaid providers are deprived of that "right," the resolutions are preempted regardless of the treatment of competing providers. Therefore, the panel reversed the district court's ruling in favor of MetroPCS and remanded for the district court to consider in the first instance MetroPCS's other challenges to the resolution. View "MetroPCS California, LLC v. Picker" on Justia Law

This appeal involves conditions that the FCC imposed on a merger of three cable companies into a new merged entity, New Charter. Among other things, the conditions (1) prohibit New Charter from charging programming suppliers for access to its broadband subscribers, (2) prohibit New Charter from charging broadband subscribers based on how much data they use, (3) require New Charter to provide steeply discounted broadband service to needy subscribers, and (4) require New Charter to substantially expand its cable infrastructure for broadband service. The appellants include three of New Charter's customers, whose bills for cable broadband Internet service increased shortly after the merger. These appellants contend that the conditions caused this injury, which would likely be redressed by an order setting the conditions aside.The DC Circuit held that these three individual appellants have standing to challenge the interconnection and discounted-services conditions, but not the usage-based pricing and buildout conditions. Furthermore, although the lawfulness of the interconnection and discounted-services conditions are properly before the court, the FCC declined to defend them on the merits. Accordingly, the court vacated the first and third conditions based on the FCC's refusal to defend on the merits. Finally, the court dismissed the remaining aspects of the appeal for lack of an appellant with Article III standing. View "Competitive Enterprise Institute v. Federal Communications Commission" on Justia Law

At issue in this appeal was the computation of the broadband credit limits that a taxpayer may use against its franchise-tax and income-tax liabilities. During the tax periods at issue, AT&T Mobility II, LLC, and BellSouth Telecommunications operated telecommunications enterprises and made significant investments in broadband technology developments throughout Mississippi, generating Broadband Investment Credits (Broadband Credits) under Mississippi Code Section 57-87-5. BellSouth Mobile Data, SBC Alloy Holdings, New BellSouth Cannular Holdings, New Cingular Wireless Services, SBC Telecom, and Centennial were all direct or indirect corporate owners of AT&T Mobility II. The taxpayers here each filed a separate franchise-tax return and were included as affiliated group members in the combined corporate income-tax return filed on behalf of the affiliated group. The Mississippi Department of Revenue (MDOR) determined that the broadband credits the taxpayers had claimed had been improperly applied to an amount greater than the credit cap of 50 percent of the taxpayers’ tax liabilities according to Mississippi Code Section 57-87- 5(3) (Rev. 2014). The MDR disallowed portions of the broadband credits claimed by the taxpayers and assessed additional franchise taxes, interest and penalties to the taxpayers separately on several dates between December 22, 2014, and May 20, 2015. The taxpayers argue that each taxpayer is jointly and severally liable for the total combined income-tax liability of the affiliated group, therefore making the income-tax liability of each taxpayer the same as the total combined income-tax liability of the affiliated group. The chancellor granted summary judgment in favor of the taxpayers and ruled that the taxpayer’s tax liabilities under Chapters 7 and 13 of Title 271 of the Mississippi Code was the aggregate of the taxpayer’s separate franchise-tax liability and the total combined income-tax liability of the affiliated group. The Mississippi Supreme Court affirmed the chancellor's ruling on the credit-computation issue. "The plain and unambiguous language of Section 57-87-5 clearly limits broadband credits that a taxpayer may take in any given year to 50 percent of the aggregate of the taxpayers’ franchise-tax liability and the total combined income-tax liability of the affiliated group." View "Mississippi Dept. of Revenue v. SBC Telecom, Inc. et al." on Justia Law

The Ninth Circuit granted in part and denied in part petitions for review of three FCC orders issued in 2018 concerning the newest generation of wireless broadband technology known as "5G." Two of the orders, known as the Small Cell Order and Moratoria Order, spell out the limits on local governments' authority to regulate telecommunications providers. The third order, known as the One Touch Make-Ready Order, was intended to prevent owners and operators of utility poles from discriminatorily denying or delaying 5G and broadband service providers access to the poles.The panel held that, given the deference owed to the agency in interpreting and enforcing this important legislation, the Small Cell and Moratoria Orders are, with the exception of one provision, in accord with the congressional directive in the Telecommunications Act of 1996, and not otherwise arbitrary, capricious, or contrary to law. The exception is the Small Cell Order provision dealing with the authority of local governments in the area of aesthetic regulations. The panel held that to the extent that provision requires small cell facilities to be treated in the same manner as other types of communications services, the regulation is contrary to the congressional directive that allows different regulatory treatment among types of providers, so long as such treatment does not "unreasonably discriminate among providers of functionally equivalent services." The panel also held that the FCC's requirement that all aesthetic criteria must be "objective" lacks a reasoned explanation.The panel upheld the third order, holding that the FCC reasonably interpreted Section 224 of the Act as a matter of law, and the order is not otherwise arbitrary or capricious. The panel rejected petitioners' challenges to four secondary aspects of the order regarding rules for overlashing, preexisting violations, self-help, and rate reform. View "City of Portland v. United States" on Justia Law

The Communications Act of 1934 restricts the rates that telecommunications carriers may charge for transmitting calls across their networks, 47 U.S.C. 201(b). Iowa-based Aureon is a joint venture through which local carriers connect to long-distance carriers such as AT&T and has “subtending” agreements with participating local carriers. AT&T alleged that Aureon imposed interstate and intrastate access charges that violated the Federal Communications Commission (FCC) transitional pricing rules; improperly engaged in access stimulation (enticing high call volumes to generate increased access charges); committed an unreasonable practice by agreeing with subtending carriers to connect calls involving access stimulation; and billed for service not covered by its 2013 interstate tariff. The FCC found that Aureon violated the transitional rule.The D.C. Circuit reversed in part. The transitional rule applies to all “competitive local exchange carriers,” and Aureon falls into that category but the rule applies to intrastate rates so Aureon’s 2013 increase of its interstate rate was not covered. The court remanded the question of whether Aureon’s subtending agreements qualify as access revenue sharing agreements. The court affirmed the FCC’s determination that Aureon’s interstate tariffs apply to traffic involving any local carriers engaged in access stimulation. The FCC erred in refusing to adjudicate AT&T’s unreasonable-practices claim. View "AT&T Corp. v. Federal Communications Commission" on Justia Law

In an appeal by allowance, the Pennsylvania Supreme Court considered the level of deference courts had to afford an administrative agency’s interpretation of its enabling statute. Additionally, the Court considered whether the Commonwealth Court erred in concluding that Distributed Antenna System (DAS) networks were public utilities under the Pennsylvania Public Utility Code (Code), thereby reversing the Pennsylvania Public Utility Commission’s (PUC) interpretation of the definition of “public utility." This case involved the status of DAS networks as public utilities in Pennsylvania. Appellees, Crown Castle NG East LLC (Crown Castle NG) and Pennsylvania-CLEC LLC (Pennsylvania-CLEC) (collectively Crown Castle), operated DAS networks. Crown Castle’s DAS networks provided telecommunications transport services to Wireless Service Providers (WSP), such as AT&T Wireless, Verizon Wireless, T-Mobile, and others. The WSPs offered "commercial mobile radio service" (CMRS) to retail end-users. The Supreme Court agreed with the Commonwealth Court that DAS network operators did not provide CMRS because DAS network operators “own no spectrum, need no phone numbers, and their contractual relationship is solely with the WSPs, not with the retail cell phone user. . . . [T]he DAS network operator has no control over the generation of that signal [that it transports for the WSPs].” Accordingly, the Court concluded that DAS network operators did not furnish CMRS and were not excluded from the definition of public utility by Section 102(2)(iv). Further, the Court concluded the Commonwealth Court did not err in holding that the PUC’s interpretation of a clear and unambiguous statutory provision was not entitled to deference. Further, the Commonwealth Court properly concluded that DAS network service met the definition of “public utility” and is not excluded from that definition as it did not furnish CMRS service. View "Crown Castle NG East LLC, et al v. Pennsylvania Utilities Commission" on Justia Law

Following an incident at President Trump's 2019 Social Media Summit involving Appellee Brian Karem, a journalist with a hard pass, and Sebastian Gorka, a Summit attendee, the Press Secretary suspended Karem's pass for thirty days on the ground that his conduct violated "professional journalistic norms."The DC Circuit affirmed the district court's grant of a preliminary injunction enjoining the enforcement of the suspension of Karem's hard pass credentials based on Fifth Amendment due process grounds. The court held that Karem is likely to succeed on his due process claim because, on this record, he lacked fair notice that the White House might punish his purportedly unprofessional conduct by suspending his hard pass for a month. The court also held that the remaining preliminary injunction factors counsel in favor of affirmance where Karem stands to suffer immediate irreparable harm absent an injunction, and the balance of the equities and the public interest factors also favor an injunction. The court limited the scope of the injunction to run only to the Press Secretary, rather than the Press Secretary and the President. View "Karem v. Trump" on Justia Law