Justia Communications Law Opinion Summaries

Articles Posted in US Court of Appeals for the District of Columbia Circuit
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NTCH challenged the Commission's three spectrum-management decisions: first, the Commission "modified" Dish Network's license in the AWS-4 Band to authorize the company to develop a stand-alone terrestrial network that could support wireless broadband services; second, the Commission "waived," a year later, certain technical restrictions on these modified licenses, though it conditioned the waivers on Dish Network's commitment to bid a certain sum of money in a public auction for adjacent spectrum in the so-called "H Block;" and third, the Commission designed and conducted "Auction 96," in which Dish Network bid as promised and won the H Block licenses. The DC Circuit denied NTCH's petitions for review of the district court's orders modifying Dish Network's AWS-4 licenses and establishing Auction 96’s procedures. Applying a deferential standard of review, the court held that the Commission's decision to authorize standalone terrestrial services in the AWS-4 Band sought to encourage "innovative methods of exploiting the spectrum," to address the "urgent need" for wireless broadband. Furthermore, the Commission chose to modify Dish Network's licenses largely because of the "technical judgment," that same-band, separate-operator sharing of the spectrum would be impractical. The court held that the Commission's decision was logical and that the Commission's failure to consider an alternative was not unreasonable. The court rejected NTCH's remaining contentions that the Commission's decision exceeded its authority under section 316 of the Communications Act. In regard to the Auction 96 procedures, the court held that NTCH failed to show that the Commission's decision was arbitrary and capricious. However, the court held that the Commission wrongly dismissed NTCH's challenges to the waiver orders for lack of administrative standing, and thus remanded for the Commission to consider those claims on the merits. View "NTCH, Inc. v. FCC" on Justia Law

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Flat Wireless and NTCH challenged the FCC's order approving rates that Verizon offered to Flat Wireless for both voice and data roaming. The DC Circuit held that Flat Wireless' challenge runs counter to Commission rules that deliberately eschew cost-based regulation of roaming rates. The court rejected Flat Wireless' primary contention that the Commission should have required Verizon to offer roaming rates closer to its costs, and considered Flat Wireless' challenge as a collateral attack on the Voice and Data Roaming Rules. The court rejected Flat Wireless' remaining arguments in support of its claim and denied the petition for review. The court also held that it lacked jurisdiction over Flat Wireless' challenge to the 2015 Open Internet Rule because the rule was nonfinal as to Flat Wireless and was still subject to the Commission's revision. Finally, the court dismissed NTCH's petition for review because it was not properly before the court. View "Flat Wireless, LLC v. FCC" on Justia Law

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The DC Circuit declined to vacate the FCC's 2018 Order in its entirety, which classified broadband internet access services as an information service under Title I of the Communications Act of 1934, as amended by the Telecommunications Act of 1996. Specifically, the 2018 Order classified broadband internet as an "information service," and mobile broadband as a "private mobile service." In the Order, the Commission adopted transparency rules intended to ensure that consumers have adequate data about Internet Service Providers' network practices, and the Commission applied a cost-benefit analysis, concluding that the benefits of a market-based, "light-touch" regime for Internet governance outweighed those of common carrier regulation under Title II. The court held, under the guidance of National Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980–981 (2005), that the Commission permissibly classified broadband Internet access as an "information service" by virtue of the functionalities afforded by DNS and caching. The court also held that, even though petitioners' reading of a functional equivalence in 47 U.S.C. 332(d)(3) was not foreclosed by the statute, the agency's interpretation of that term, and its application to mobile broadband, were reasonable and merit Chevron deference. Furthermore, the court held that the Commission's rationales in favor of its reading of Section 706 of the Telecommunications Act was reasonable, and agreed that the transparency rule was authorized by 47 U.S.C. 257. Therefore, the court upheld the 2018 Order with two exceptions. The court held that the Commission has not shown legal authority to issue its Preemption Directive, which would have barred states from imposing any rule or requirement that the Commission "repealed or decided to refrain from imposing" in the Order or that is "more stringent" than the Order. Accordingly, the court vacated that portion of the Order. The court also remanded the Order to the agency on three discrete issues regarding public safety, pole attachments, and the Lifeline Program. View "Mozilla Corp. v. FCC" on Justia Law

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Petitioners challenged one of the FCC's orders paring some regulatory requirements for the construction of wireless facilities. The Order exempted most small cell construction from two kinds of previously required review: historic-preservation review under the National Historic Preservation Act (NHPA) and environmental review under the National Environmental Policy Act (NEPA). Furthermore, the Order effectively reduced Tribes' role in reviewing proposed construction of macrocell towers and other wireless facilities that remain subject to cultural and environmental review. The DC Circuit granted the petitions in part because the Order did not justify the Commission's determination that it was not in the public interest to require review of small cell deployments. In this case, the Commission did not adequately address possible harms of deregulation and benefits of environmental and historic-preservation review pursuant to its public interest authority under 47 U.S.C. 319(d). Therefore, the Order's deregulation of small cells was arbitrary and capricious. The court denied the petitions for review on the remaining claims. View "United Keetoowah Band of Cherokee Indians in Oklahoma v. FCC" on Justia Law

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After GLH acquired radio spectrum licenses from Leap, who had originally purchased some licenses from the FCC, it assumed the obligation of the installment payments. When GLH failed to make the payments for some of the licenses, the Commission canceled them and reauctioned the underlying spectrum to new providers. GLH challenged both the Commission’s decision to cancel the licenses and its refusal to give GLH a credit against its debt for the proceeds of the reauction. The DC Circuit held that the Commission acted appropriately in cancelling GLH's licenses for failure to make the installment payments and in refusing to apply the reauction proceeds against GLH's debt. In this case, the Commission appropriately explained the legal standard, examined the particular facts of GLH's case, and reasonably applied that standard to those facts. Therefore, the Commission's denial of GLH's waiver request was not arbitrary and capricious. The court also held that GLH may initiate consideration of its equitable argument for debt forgiveness by filing a petition for debt compromise. Accordingly, the court affirmed the Commission's decision. View "GLH Communications, Inc. v. FCC" on Justia Law

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Plaintiffs, 14 locksmith companies, filed suit alleging that Google, Microsoft, and Yahoo! have conspired to "flood the market" of online search results with information about so-called "scam" locksmiths, in order to extract additional advertising revenue. The DC Circuit affirmed the district court's dismissal of the amended complaint as barred by section 230 of the Communications Decency Act, which states that no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. The parties agreed as to the first and third prongs of the section 230 test for determining whether the Act mandates dismissal, holding that defendants were a provider or user of an interactive computer service and that the complaint sought to hold defendants liable as the publisher or speaker of that information. As to the contested second prong of the section 230 test, the court held that the information for which plaintiff seeks to hold defendants liable was information provided by another information content provider and thus dismissal was warranted under the Act. In this case, defendants' translation of information that comes from the scam locksmiths' webpages fell within the scope of section 230 immunity. View "Marshall's Locksmith Service v. Google, LLC" on Justia Law

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In an action filed by the government to enjoin the vertical merger between AT&T and Time Warner under Section 7 of the Clayton Act, the DC Circuit affirmed the district court's denial of the government's request for a permanent injunction. At issue on appeal was the district court's findings on its increased leverage theory whereby costs for Turner Broadcasting System's content would increase after the merger, principally through threats of long-term "blackouts" during affiliate negotiations. The court held that the government failed to clear the first hurdle in meeting its burden of showing that the proposed merger was likely to increase Turner Broadcasting's bargaining leverage. Furthermore, the government's objections that the district court misunderstood and misapplied economic principles and clearly erred in rejecting the quantitative model were unpersuasive. In this case, the government offered no comparable analysis of data for prior vertical mergers in the industry that showed "no statistically significant effect on content prices" as defendants had. Additionally, the government's expert opinion and modeling predicting such increases failed to take into account Turner Broadcasting System's post-litigation irrevocable offers of no-blackout arbitration agreements, which a government expert acknowledged would require a new model. The court also held that the evidence indicated that the industry had become dynamic in recent years with the emergence of distributors of only on-demand content, such as Netflix and Hulu. View "United States v. AT&T, Inc." on Justia Law

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Petitioners challenged the FCC's adoption of two limitations to programs that make voice and broadband services more available and affordable for low-income consumers. Petitioners argued that the limitations limited the enhanced Tribal Lifeline subsidy to services provided by eligible telecommunications carriers that utilize their own fixed or mobile wireless facilities, excluding carriers that resell services provided over other carriers' facilities (Tribal Facilities Requirement). Second, it limited the enhanced Tribal Lifeline subsidy to residents of "rural" areas on Tribal lands (Tribal Rural Limitation). The DC Circuit granted the petition for review, holding that the Commission's adoption of these two limitations was arbitrary and capricious by not providing a reasoned explanation for its change of policy that is supported by record evidence. In this case, by adopting the Tribal Facilities Requirement, the Commission's decision failed to consider the exodus of facilities-based providers; did not point to evidence that banning resellers from the Tribal Lifeline program would promote network buildout; failed to analyze the impact of the facilities requirement on Tribal residents who currently rely on wireless resellers; and ignored that the Commission's decision was a fundamental change that adversely affects the access and affordability of service for residents of Tribal lands. Likewise, by adopting the Tribal Rural Limitation, the Commission failed to consider the impact on service access and affordability. Finally, the court held that non-harmless procedural defects also existed. View "National Lifeline Association v. FCC" on Justia Law

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The Architect of the Capitol removed high school student David Pulphus’ painting from the exhibition of the 2016 winners of the Congressional Art Competition. The painting was initially described as “a colorful landscape of symbolic characters representing social injustice, the tragic events in Ferguson, Missouri, and the lingering elements of inequality in modern American society.” It was removed after protests by police unions and a FOX news personality, based on a newspaper story that described it as “depicting police officers as pigs with guns terrorizing a black neighborhood.” After unsuccessfully asking that the House Office Building Commission overrule the removal decision, Pulphus and Missouri Congressman Clay unsuccessfully sought a preliminary injunction, alleging violations of their First Amendment rights. The D.C. Circuit dismissed an appeal as moot; the 2016 Congressional Art Competition is over and no other concrete, redressable injury is alleged that was caused by the Architect’s removal decision. View "Pulphus v. Ayers" on Justia Law

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Sorenson and VRSCA petitioned for review of the FCC's 2017 Order setting rates for Video Relay Service (VRS). The DC Circuit held that VRSCA failed to establish associational standing because it did not identify a specific member who had been injured by the 2017 Order and it did not disclose that it was fully funded by Sorenson. In regard to Sorenson's petition, the court held that Sorenson had standing under the competitor standing doctrine and Sorenson was not barred from challenging the tiered-rate structure because of its prior lawsuits. On the merits, the court held that the FCC reasonably interpreted its efficiency mandate by retaining its tiered-rate system to prevent the market from devolving into a monopoly. Finally, FCC's tiered-rate structure in the 2017 Order was reasonable. Accordingly, the court dismissed VRSCA's petition for lack of standing and denied Sorenson's petition for review. View "Sorenson Communications, LLC v. FCC" on Justia Law