Justia U.S. D.C. Circuit Court of Appeals Opinion Summaries

Articles Posted in Communications Law

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In this case, the court addresses the fees that local exchange carriers (LECs) can charge inter-exchange carriers (IXCs) for certain services they provide, in coordination with providers of Voice over Internet Protocol (VoIP), for the completion of “inter-exchange” calls. The FCC concluded that the disputed services are end-office switching services. Petitioner AT&T says that they are tandem switching services. In 2011, the Commission made a broad effort to update its system for regulating intercarrier compensation (the Transformation Order). The Commission, in In re Connect America Fund, ruled that the disputed services are indeed end-office access under subsection (3) of 47 C.F.R. 51.903(d). AT&T challenges the Declaratory Ruling. The court found that the Declaratory Ruling does not disclose the Commission’s reasoning with the requisite clarity to enable it to sustain such a conclusion. Therefore, the court vacated and remanded the order to the Commission for further explanation. The court need not reach AT&T's second challenge. View "AT&T Corp. v. FCC" on Justia Law
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NTCH challenges the FCC's Memorandum Order and Reconsideration Order approving the transfer of radio spectrum licenses to Verizon, granting Verizon forbearance from a statutory provision, and refusing to initiate proceedings to revoke other licenses held by Verizon. Verizon intervened in support of the FCC. The court rejected NTCH's claims and concluded that the FCC’s decision not to initiate proceedings to revoke Verizon’s licenses is not subject to judicial review; any questions about the licenses Verizon obtained before the Spectrum Assignment are not properly before the court; NTCH’s challenge to the FCC’s grant of prospective forbearance is moot because no foreign entity now has any ownership of Verizon; and the Commission’s determination that the Spectrum Assignment was in the public interest was reasonable and therefore survives arbitrary and capricious review. View "NTCH, Inc. v. FCC" on Justia Law
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The Spectrum Act, Pub. L. No. 112-96, 126 Stat. 156, responds to the rapidly growing demand for mobile broadband services by granting the FEC authority to reallocate a portion of the licensed airwaves from television broadcasters to mobile broadband providers. The Act contemplates the repurposing of licensed spectrum through a multi-step auction process. The statutory framework governing the repacking process is set out in 47 U.S.C. 1452. This case involves a challenge to the Commission’s implementation of the Spectrum Act brought by a particular species of broadcasters - low-power television (LPTV) stations. Determining that it has jurisdiction, the court rejected petitioners’ contention that the terms of section 1452(b)(5) unambiguously compel protecting LPTV stations from displacement in the repacking process called for by the Act. Furthermore, the court concluded that the Commission’s treatment of LPTV stations in the challenged orders rests on a reasonable understanding of subsection (b)(5) for purposes of Chevron step two, and the court rejected petitioners’ arbitrary-and-capricious arguments to the same effect. Finally, the court rejected petitioners' procedural challenge. Accordingly, the court denied the petitions for review. View "Mako Commc'n v. FCC" on Justia Law

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The Tennis Channel filed a complaint alleging that Comcast violated Section 616 of the Communications Act, 47 U.S.C. 536, by giving preferential treatment to its affiliated networks in programming tier placement. Tennis Channel prevailed before the FCC, but the district court held that the Commission and Tennis Channel had failed to identify substantial evidence of unlawful discrimination based on affiliation (Tennis I). On remand, the Commission resolved the entirety of Tennis Channel’s complaint in Comcast’s favor and denied Tennis Channel’s petition for further proceedings. The court concluded that Tennis Channel fails to show that the Commission acted arbitrarily and capriciously when it interpreted Tennis I consistently with that administrative law precedent; under the circumstances, the Commission correctly concluded that Tennis I left no room for it to find discrimination on the existing administrative record; and Tennis Channel’s reliance on Section 402(h) is misplaced. Regarding the request for further briefing, because the Commission correctly determined that Tennis I concluded the administrative record contained insufficient evidence to support a finding of Section 616 discrimination by Comcast, the Commission’s rejection of Tennis Channel’s request for further briefing was hardly a clear abuse of discretion. The Commission already had the opportunity to review the record evidence that Tennis Channel claimed in its petition for further proceedings was critical to showing affiliate discrimination. Regarding the request to reopen the record to allow submission of additional evidence, although the Commission’s explanation for denying Tennis Channel’s request was brief, it was sufficient. Accordingly, the court denied the petition for review. View "The Tennis Channel, Inc. v. FCC" on Justia Law

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Petitioners challenge the Commission's 2015 Open Internet Order, which reclassified broadband service as a telecommunications service, subject to common carrier regulation under Title II of the Communications Act, 47 U.S.C. 201. The Commission determined that broadband service satisfies the statutory definition of a telecommunications service: “the offering of telecommunications for a fee directly to the public.” In accordance with Brand X, the Commission's conclusions about consumer perception find extensive support in the record and together justify the Commission’s decision to reclassify broadband as a telecommunications service. See National Cable & Telecommunications Ass’n v. Brand X Internet Services. The court rejected petitioners' numerous challenges to the Commission's decision to reclassify broadband, finding that none have merit. The court concluded that the Commission adequately explained why it reclassified broadband from an information service to a telecommunications service and its decision was not arbitrary and capricious. US Telecom never questions the Commission’s application of the statute’s test for common carriage, and US Telecom cites no case, nor is the court aware of one, holding that when the Commission invokes the statutory test for common carriage, it must also apply the NARUC test. See National Ass’n of Regulatory Utility Commissioners v. FCC. Where the Commission concluded that it could regulate interconnection arrangements under Title II as a component of broadband service, the court rejected US Telecom's two challenges to the Commission's decision. The court rejected mobile petitioners’ arguments and find that the Commission’s reclassification of mobile broadband as a commercial mobile service is reasonable and supported by the record. In the Order, the Commission decided to forbear from numerous provisions of the Communications Act. The court rejected Full Service Network's procedural and substantive challenges to the Commission’s forbearance decision. The Commission promulgated five rules in the Order: rules banning (i) blocking, (ii) throttling, and (iii) paid prioritization; (iv) a General Conduct Rule; and (v) an enhanced transparency rule. The court rejected Alamo's challenge to the anti-paid-prioritization rule as beyond the Commission’s authority and rejected US Telecom's challenge to the General Conduct Rule as unconstitutionally vague. Having upheld the FCC’s reclassification of broadband service as common carriage, the court concluded that the First Amendment poses no bar to the rules and the court rejected Alamo and Berninger's challenges. Accordingly, the court denied the petitions for review. View "United States Telecom Assoc. v. FCC" on Justia Law

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Petitioners seek review of the FCC's order finding that the rates it charged long-distance telephone carrier AT&T for use of its network exceeded the amount allowed by Commission regulations. The court concluded that the Commission reasonably concluded that Great Lakes was subject to the Commission’s benchmark rule in the years prior to AT&T’s 2014 complaint. Because the Commission failed to adequately explain its conclusion that Great Lakes did not qualify for the Commission’s “rural exemption,” which would have allowed it to charge the challenged rates, the court remanded the issue to the Commission for further consideration. The court also concluded that the Commission reasonably selected the correct incumbent local exchange carrier or ILEC for purposes of determining the applicable benchmark rate. The court disposed of Great Lakes' remaining challenges and denied the petition for review in all other respects. View "Great Lakes Comnet, Inc. v. FCC" on Justia Law

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Milan Jankovic, also known as Philip Zepter, filed suit against ICG for defamation based on a statement in one of its reports that linked him to the Slobodan Milosevic regime. In this appeal, the court held that the district court properly granted summary judgment to ICG. On the evidence before the district court, Zepter was a limited-purpose public figure with respect to the public controversy surrounding political and economic reform in Serbia and integration of Serbia into international institutions during the post-Milosevic era; he was not a mere bystander engaged in civic duties but was an advisor to and financial supporter of Prime Minister Zoran Djindjic, who came into power following Milosevic’s ouster; and Zepter’s mustering of evidence, deficient in part due to his procedural defaults, fails to show by clear and convincing evidence that ICG acted with actual malice in publishing the statement. Accordingly, the court affirmed the judgment. View "Milan Jankovic v. International Crisis Group" on Justia Law

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ADX petitioned the FCC to deny the assignment to a competitor of several radio licenses in the Pensacola, Florida, and Mobile, Alabama, markets. The FCC denied the petition and ADX appealed, contending that, in applying the statutory caps on ownership of radio stations, the Commission should not have used its normal market definition methodology because of unique aspects of the Pensacola and Mobile markets. Alternatively, ADX contends that the Commission should have applied the two-year waiting period applicable to changes in market definition. Determining that ADX has Article III standing, the court affirmed the judgment because the Commission reasonably exercised its judgment in deciding not to deviate from the market definition methodology it adopted in 2003, and because its interpretation of the waiting period was consistent with the policy established in its prior order and not otherwise suspect. View "ADX Communications v. FCC" on Justia Law
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Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, known as the Spectrum Act, authorizes the FCC to shift a portion of the licensed airwaves from over-the-air television broadcasters to mobile broadband providers. The Act directs the Commission to carry out the objective of repurposing spectrum through three interdependent initiatives: (i) a reverse auction to determine the prices at which broadcasters would voluntarily sell their spectrum rights; (ii) a reassignment of broadcasters who wish to retain their rights to new channels in a smaller band of spectrum; and (iii) a forward auction to sell the blocks of newly available spectrum to wireless providers, with the proceeds used to compensate broadcasters who voluntarily relinquished their spectrum rights and to pay the relocation expenses of broadcasters reassigned to new channels. Members of the television broadcast industry petitioned for review of the Commission's orders, arguing that the decisions announced in the orders conflict with the Act or are otherwise arbitrary and capricious. The court rejected petitioners’ contention at Chevron step one that the statute unambiguously forecloses the Commission’s use of the improved TVStudy program along with updated data inputs when applying OET-69 to determine a broadcaster’s coverage area and population served; the court rejected petitioners’ argument that the Commission’s decision to use TVStudy and updated inputs amounts to an unreasonable interpretation of the Act at Chevron step two; the court rejected petitioners' arbitrary-and-capricious arguments; in regards to petitioners' procedural challenge, any error in OET’s (rather than the Commission’s) issuing the Public Notice was harmless; and the court rejected petitioners' remaining arguments. Accordingly, the court denied the petitions for review. View "Nat'l Ass'n of Broadcasters v. FCC" on Justia Law

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Petitioners, large entertainment companies, sought review of the Commission's order requiring the major cable companies who were applying for merger to submit certain proprietary documents for review and proposal to make them available for examination by other players in the cable industry on an expedited schedule. The court granted the petition for review and vacated the order, concluding that the Commission has failed to overcome its presumption against disclosure of confidential information by failing to explain why VPCI is a "necessary link in a chain of evidence that will resolve an issue before the Commission." The order amounts to a substantive and important departure from prior Commission policy, and the Commission has failed to explain the departure. View "CBS Corp. v. FCC" on Justia Law