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

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

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

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

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

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

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

Yasser Abbas is the son of current Palestinian leader Mahmoud Abbas. In 2012, the Foreign Policy Group published an article on its website about Yasser and his brother Tarek, asking: “Are the sons of the Palestinian president growing rich off their father’s system?” and “Have they enriched themselves at the expense of regular Palestinians – and even U.S. taxpayers?” Yasser filed suit, alleging defamation under D.C. law. The D.C. Anti-Strategic Lawsuits Against Public Participation Act of 2010 (Anti-SLAPP Act) requires courts, upon motion by the defendant, to dismiss defamation lawsuits that target political or public advocacy, unless the plaintiff can show a likelihood of success on the merits. Applying that law, the district court dismissed. The D.C. Circuit affirmed, holding that the allegations did not suffice to make out a defamation claim under D.C. law. The questions were not factual representations. The court acknowledged that a federal court exercising diversity jurisdiction may not apply the D.C. AntiSLAPP Act’s special motion to dismiss provision, which makes it easier for defendants to obtain dismissal before trial than the more plaintiff-friendly standards in Federal Rules 12 and 56. View "Abbas v. Foreign Policy Grp., LLC" on Justia Law

In 2012, the New York Times published the Sanger article, describing a classified government initiative to “undermine the Iranian nuclear program” through “increasingly sophisticated attacks on the computer systems.” Under the Freedom of Information Act (FOIA), 5 U.S.C. 552, Freedom Watch sought records from the Central Intelligence Agency (CIA), the National Security Agency (NSA), the Department of Defense (DoD), and the State Department, including “information that refers or relates in any way to information” released or made available to Sanger. The CIA, NSA, and DoD cited national security; each stated that it could “neither confirm nor deny the existence or non-existence” of responsive records. After FOIA’s deadline expired, Freedom Watch filed suit. The district court dismissed the CIA and NSA based on failure to exhaust administrative remedies; granted DoD summary judgment based on FOIA’s national security exemption; and granted the State Department partial judgment, finding certain requests unduly speculative. Concerning information released to Sanger, the State Department obtained a 60-day extension and produced 79 documents. The court denied a motion to depose a records custodian, finding no evidence of bad faith, and granted the State Department summary judgment. Before oral argument, Freedom Watch moved to supplement the record with news articles relating to the revelation that former Secretary of State Clinton had maintained a private email account on a private server and sought to expand the search on remand. The D.C. Circuit remanded to allow the court to oversee the search of the former Secretary’s emails for records responsive to Freedom Watch’s FOIA request, but otherwise affirmed. View "Freedom Watch, Inc. v. Nat'l Sec. Agency" on Justia Law

The National Labor Relations Board dismissed a charge that the Union violated the National Labor Relations Act, 29 U.S.C. 158(b)(1)(A), by failing to remove derisive and allegedly threatening comments posted on a Facebook page maintained for Union members. The comments, written by Union members without the permission of the Union, appeared while the Union was on strike against Veolia and made disparaging remarks about people who crossed the picket line. The Board held that the Union was not responsible for the Facebook comments because “the 3 individuals who posted the comments were neither alleged nor found to be agents of the [Union].” The D.C. Circuit affirmed, rejecting an argument that the Union should be held responsible for the Facebook entries posted by Union members because a Union officer controlled the Facebook page. The Union’s private Facebook page was not analogous to misconduct on a picket line; it was not accessible or viewable by anyone other than active Union members and the disputed postings were made by persons who acted on their own without the permission of the Union. View "Weigand v. Nat'l Labor Relations Bd." on Justia Law

The Federal Communications Commission denied applications to renew 689 wireless spectrum licenses in the 24 gigahertz (GHz) and 39 GHz bands for failure to meet the “substantial service” performance standard during the license term. FiberTower claimed that the Commission’s interpretation of the performance standard as requiring some actual construction in each license area conflicted with the Commission’s statutory mandate in 47 U.S.C. 309(j)(4)(B). The D.C. Circuit declined to address that argument, which was not presented to the Commission. FiberTower also argued that the Commission’s interpretation of “substantial service” was inconsistent with that standard as originally promulgated by the Commission. The court rejected that argument. The court vacated with respect to 42 licenses because FiberTower claimed that their renewal applications stated construction had occurred. View "FiberTower Spectrum Holdings, LLC v. Fed. Commc'ns Comm'n" on Justia Law