Justia Communications Law Opinion Summaries

Articles Posted in US Court of Appeals for the District of Columbia Circuit
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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

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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

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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

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The DC Circuit affirmed the dismissal of the petition for review challenging the Commission's order approving the continued use of admittedly outdated accounting rules for an ever-dwindling number of telephone companies whose pricing is governed by those rules.The court held that the individual petitioners lacked Article III standing to challenge the Commission's orders, because they have presented no evidence that the continuing application of the frozen rules has harmed them or is likely to harm them. In this case, the individuals do not purchase telephone service from a provider whose rates are directly affected by the rules and thus they have not shown how the rules distort the market to their disadvantage or otherwise harm them indirectly. View "Irregulators v. FCC" on Justia Law

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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