Articles Posted in Communications Law

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The DC Circuit affirmed the dismissal of Nueva's application to the FCC for a license to construct and operate a Lower Power FM Radio (LPFM) station in Philadelphia. Because Nueva's interpretation of a Blog Post authored by the Chief of the Media Bureau, which was intended to give guidance to applicants, was not correct, the court affirmed the Commission's denial of the application for review without reaching Nueva's claim that the Blog Post was binding upon the Commission. In this case, the Commission's interpretation of the Blog Post was not arbitrary and capricious. The court also held that Nueva forfeited its argument that it did not have fair notice of the Commission's interpretation of the Blog Post. View "Nueva Esperanza, Inc. v. FCC" on Justia Law

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Petitioners sought review of the FCC's order reversing a decades-old, rebuttable presumption that determined whether state and local franchising authorities may regulate cable rates. Under its new Order, the Commission presumes there is Competing Provider Effective Competition and places the burden upon the franchising authority that wants to regulate basic cable rates to prove there is not effective competition in its area. The D.C. Circuit denied the petition for review and held that the Commission's use of a rebuttable presumption to comply with the statutory requirement that it make a finding on the state of competition in each franchise area was a permissible construction of the statutory requirement that the Commission find effective competition before terminating rate regulation; the Commission reasonably interpreted the Communications Act to allow, after a finding of effective competition, termination of existing certifications without having to wait for a petition of the kind referenced in 47 U.S.C. 543(a)(5); and the court rejected arguments regarding the STELA Reauthorization Act. The court also held that the Commission's rule was not arbitrary nor capricious. View "National Association of Telecommunications Officers and Advisors v. FCC" on Justia Law

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Petitioners challenged the Commission's order that set permanent rate caps and ancillary fee caps for interstate inmate calling services (ICS) calls. After the presidential inauguration in January 2017, counsel for the FCC advised the court that, due to a change in the composition of the Commission, "a majority of the current Commission does not believe that the agency has the authority to cap intrastate rates" under section 276 of the Communications Act of 1934. Consequently, the DC Circuit granted in part and denied in part the petitions for review, remanding for further proceedings. The court also dismissed two claims as moot. The court held that the order's proposed caps on intrastate rates exceed the FCC's statutory authority under the Telecommunications Act of 1996 Act; the use of industry-averaged cost data as proposed in the Order was arbitrary and capricious because it lacked justification in the record and was not supported by reasoned decisionmaking; the order's imposition of video visitation reporting requirements was beyond the statutory authority of the Commission; and the order's proposed wholesale exclusion of site commission payments from the FCC's cost calculus was devoid of reasoned decisionmaking and thus arbitrary and capricious. View "Global Tel*Link v. FCC" on Justia Law

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Neustar petitioned for review of the FCC's orders naming another company, Telcordia, to replace it as the Local Number Portability Administrator (LNPA). The DC Circuit held that it had jurisdiction to hear Neustar's petition; the Order did not qualify as a rule, and there was no requirement of notice-and-comment rulemaking when selecting the LNPA; neither the FCC's neutrality determination nor its cost analysis was arbitrary and capricious; and the FCC's Best and Final Offers (BAFO) determination was not arbitrary and capricious. Because the court found no error in the FCC's decision, the court denied the petitions for review. View "Neustar, Inc. v. FCC" on Justia Law

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The Junk Fax Prevention Act of 2005, 47 U.S.C. 227(b) bans most unsolicited fax advertisements, but allows unsolicited fax advertisements in certain commercial circumstances. The FCC issued a rule in 2006 that requires businesses to include opt-out notices not just on unsolicited fax advertisements, but also on solicited fax advertisements. Petitioners, businesses that send solicited fax advertisements, contend that the FCC's new rule exceeds the FCC's authority under the Act. The court held that the Act's requirement that businesses include an opt-out notice on unsolicited fax advertisements does not authorize the FCC to require businesses to include an opt-out notice on solicited fax advertisements. Therefore, the court held that the FCC's 2006 Solicited Fax Rule is unlawful to the extent that it requires opt-out notices on solicited faxes. The court vacated the order in this case because it interpreted and applied that 2006 Rule, remanding for further proceedings. View "Bais Yaakov of Spring Valley v. FCC" on Justia Law

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NARUC challenged the FCC's order authorizing interconnected Voice-over-Internet-Protocol service providers (I-VoIPs) to obtain North American Numbering Plan telephone numbers directly from the Numbering Administrators rather than through intermediary local phone service numbering partners. NARUC argued that the Commission has effectively classified I-VoIP service as a Title II telecommunications service, or acted arbitrarily by delaying a classification decision or by extending Title II rights and obligations to I-VoIPs in the absence of classification. The court concluded that it lacked jurisdiction and dismissed the petition, concluding that NARUC failed to demonstrate an injury-in-fact, and thus failed to establish Article III standing to challenge the Order. View "National Association of Regulatory Utility Commissioners v. FCC" on Justia 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

Posted in: Communications 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

Posted in: Communications 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

Posted in: Communications Law