Justia Communications Law Opinion Summaries

Petitioner Qwest Corporation sought review of an order of the Federal Communications Commission which denied Qwest’s petition for regulatory forbearance pursuant to 47 U.S.C. 160(a). Qwest filed a petition with the Commission in March 2009 seeking relief from certain regulations pertaining to telecommunications services in the Phoenix, Arizona, metropolitan statistical area (MSA). The Commission denied the petition, citing insufficient evidence of sufficiently robust competition that would preclude Qwest from raising prices, unreasonably discriminating, and harming consumers. Qwest challenged the Commission’s decision only as it pertained to Qwest’s mass-market retail services. Upon review, the Tenth Circuit denied Qwest's petition: "We are not a 'panel of referees on a professional economics journal,' but a 'panel of generalist judges obliged to defer to a reasonable judgment by an agency acting pursuant to congressionally delegated authority.'" The Court found the Commission's order was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." View "Qwest Corp. v. Fed. Communications Comm'n" on Justia Law

The Rural Cellular Association and the Universal Service for America Coalition (together the RCA) petitioned for review of an order of the FCC amending he "interim cap rule," which limited at 2008 levels the amount of support available to competitive eligible telecommunications carriers. In the order under review, the FCC amended the interim cap rule to provide that when a carrier relinquishes its status as an eligible communications carrier, the cap on the support available in that carrier's state is reduced by the amount the relinquishing carrier would have received had it retained it status. The D.C. Circuit Court of Appeals denied the RCA's petition for review, holding that the order was a lawful exercise of the FCC's authority under the Communications Act of 1934 as amended by the Telecommunications Act of 1996, did not violate the agency's regulations, and was neither arbitrary and capricious nor unconstitutional. View "Rural Cellular Ass'n v. FCC" on Justia Law

In 2009, the Board of Health of the City of New York adopted a resolution requiring all tobacco retailers to display signs bearing graphic images showing certain adverse health effects of smoking. The district court held that the resolution is preempted by federal labeling laws. The Second Circuit affirmed, citing the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1331-41, a comprehensive program to deal with cigarette labeling and advertising, which includes a preemption provision, limiting the extent to which states may regulate the labeling, advertising, and promotion of cigarettes. View "23-34 94th St. Grocery Corp. v. NY City Bd. of Health" on Justia Law

Plaintiff Lisa R. Chapo appealed a district court's order upholding the Commissioner of Social Security's denial of her application for disability and supplemental security income benefits. The Administrative Law Judge (ALJ) denied benefits at the last step of the five-step process for determining disability. At step five the ALJ found Plaintiff not disabled because, "[c]onsidering [her] age, education [high school], work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [she] can perform," namely the jobs of appointment clerk, escort vehicle driver, and office helper identified by the vocational expert (VE) who testified at the evidentiary hearing. On appeal to the Appeals Council, Plaintiff challenged the ALJ’s decision in several respects, in particular the ALJ’s treatment of the opinion evidence in the record. Upon review of the record, the Tenth Circuit concluded that ALJ’s handling of a testifying doctor's findings was erroneous and, as a result, the dispositive hypothetical inquiry put to the VE was fatally defective. "Indeed, that hypothetical did not even include a restriction (to 'simple' work) that the ALJ himself recognized in his decision." The Court concluded that this matter be remanded for further proceedings, "wherein the ALJ must either obtain a mental RFC determination from an examining source to oppose [the doctor], articulate some other adequate basis for discounting [his] findings, or come back to the VE with a proper hypothetical including those limitations (and his own restriction to 'simple' work, should the ALJ find it appropriate to re-impose such a restriction in the RFC determined on remand)." View "Chapo v. Astrue" on Justia Law

In 2006, U.S. Marshals worked with officers in 24 states on a fugitive round-up that led to arrests of 10,733 people, including plaintiff, who was wrongfully arrested because of clerical mistakes. All charges were eventually dropped, but news reporters had filmed her arrest and aired the story, including plaintiff's name and a statement that she was wanted for identity theft, after the dismissal. One station also placed the video on its website, along with a written story. Plaintiff's attorney faxed a cease and desist letter to the station, which removed the story, although it remained accessible by keyword search for several days. Most of plaintiffs' claims against the federal and city governments, the U.S. Marshals Service, the broadcast company and employees, and various named and unnamed Marshals, were resolved. The district court rejected defamation and false light claim against the broadcast company, based on the fair report privilege requirement of proof of actual malice, and a Federal Tort Claims Act, 28 U.S.C. 1346(b)(1), claim against the U.S. for lack of subject matter jurisdiction. The Sixth Circuit affirmed, citing the discretionary function exception. Investigating and apprehending plaintiff was discretionary and not within the safe harbor for intentional torts. View "Milligan v. United States" on Justia Law

Several company operators filed a complaint against petitioner with the FCC, which ruled that petitioner's increased pole attachment rates violated the Pole Attachment Act, 47 U.S.C. 224(d), and the FCC's implementing regulations. Petitioner now sought review of that order, arguing that the Act failed to provide for just compensation under the Fifth Amendment and that the FCC's decision was arbitrary and capricious, or was otherwise not supported by substantial evidence. The court found the doctrine of collateral estoppel a fatal bar to petitioner's assertion of the constitutional issue, and its remaining arguments unavailing. Accordingly, the court denied the petition. View "Gulf Power Co. v. FCC, et al." on Justia Law

Petitioners, the City of Arlington and the City of San Antonio, sought review of a Declaratory Ruling and subsequent Order on Reconsideration that the FCC issued in response to a petition for a declaratory ruling by a trade association of wireless telephone service providers, CTIA. In the proceeding before the FCC, CTIA sought clarification of Sections 253 and 332(c)(7) of the Communications Act, 47 U.S.C. 253, 332(c)(7), regarding local review of wireless facility siting applications. Both cities claimed (1) the FCC lacked statutory authority to establish the 90- and 150-day time frames; (2) the FCC's 90- and 150-day time frames conflicted with the language of section 332(c)(7)(B)(ii) and (v); (3) the FCC's actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; and (4) the FCC violated the Administrative Procedures Act (APA), 5 U.S.C. 500 et seq., because its establishment of the 90- and 150-day time frames constituted a rulemaking subject to the APA's notice-and-comment requirements. Arlington also raised a procedural due process claim. The court denied Arlington's petition for review on the merits. The court dismissed San Antonio's petition for review because the court lacked jurisdiction because San Antonio did not timely file its petition for review. View "City of Arlington, Texas, et al. v. FCC, et al." on Justia Law

Plaintiffs, a trade organization representing incumbent cable operators in Texas and an incumbent cable provider, appealed the district court's grant of summary judgment dismissing their claims that Senate State Bill 5 violated the First and Fourth Amendments of the Constitution or was preempted by federal law. SB 5 was aimed at reforming the cable service industry in Texas by creating a new state-level franchising system that obligated the Public Utility Commission (PUC) to grant a franchise for the requested areas if the applicant satisfied basic requirements. New entrants could obtain a single statewide franchise that avoided the expense and inconvenience of separate municipal franchise agreements across the state. Overbuilders could terminate their existing municipal franchise agreements in favor of the convenience of the statewide franchise. Incumbent cable providers, however, could not similarly opt out for the statewide franchise, until after the expiration of the municipal license. The court held that because the statute unjustifiably discriminated against a small number of incumbent cable providers in violation of the First Amendment, the court reversed. View "Time Warner Cable Inc., et al. v. Hudson, et al." on Justia Law

In three challenged orders, the Commission addressed a "traffic pumping" scheme in which the holder of the filed tariff entered into contractual arrangements with conference calling companies and charged the interexchange carrier the tariff rate for providing switched access service. Farmers, the holder of the tariff, petitioned for review. As a threshold matter, Farmers, joined by intervenor, contended that the Commission lacked authority to overturn its decision in Farmers I because it failed, as 47 U.S.C. 405(b) required, to act within 90 days on Qwest's petition for partial reconsideration and consequently, Farmers I became a final appealable order. The court held that the contention was based on a misreading of the statute. The merits question was whether the Commission properly determined that Farmers was not entitled to bill Qwest for access service under Farmers' tariff because Farmers had not provided interstate "switched access service" as that term was defined in Farmers' federal access tariff. The court held that the Commission, upon considering factors within its expertise, could reasonably conclude that Farmers' relationships with the conference calling companies had been deliberately structured to fall outside the terms of Farmers' tariff and therefore reasonably rejected such services as tariffed services. Therefore, deference to the Commission's determination was appropriate. Accordingly, the court denied the petition. View "Farmers and Merchants Mutual Telephone Co. v. FCC, et al." on Justia Law

This case arose from claims that the federal government, with the assistance of major telecommunications companies, engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001 attacks. At issue was whether plaintiffs have standing to bring their statutory and constitutional claims against the government for what they described as a communications dragnet of ordinary American citizens. The court concluded that plaintiffs' claims were not abstract, generalized grievances and instead met the constitutional standing requirement of concrete injury; nor do prudential considerations bar the action; the claims did not raise a political question nor are they inappropriate for judicial resolution; and the court did not impose a heightened standing requirement simply because the case involved government officials in the national security context. Accordingly, the court reversed the district court's dismissal on standing grounds and remanded for further proceedings. View "Jewel, et al. v. NSA, et al." on Justia Law