Justia Government & Administrative Law Opinion Summaries

Hurricanes Irma and Maria devastated Puerto Rico and the U.S. Virgin Islands (the Territories) in September 2017 and destroyed large portions of the Territories’ telecommunications networks. In response, the FCC issued three orders that provided subsidies from the Universal Service Fund to help rebuild those networks. TriCounty, a telecommunications provider that contributes to the Fund, challenged two orders under the Administrative Procedure Act (APA) and the Communications Act. Tri-County argued that in one order, the FCC bypassed notice and comment without good cause and failed to justify the amount and allocation of funds and that in both orders, the FCC departed from a previous policy without explanation and contravened the Communications Act.The D.C. Circuit denied a petition for review, after finding that TriCounty had standing to challenge the orders, except with respect to the allocation of funds, from which it suffered no concrete harm. The Communications Act directs the FCC to make policies “for the preservation and advancement of universal service.” 47 U.S.C. 254(b). The FCC had previously used the Fund for disaster relief and its findings with respect to the Territories were reasonable. Under the APA, an agency may forgo notice and comment when it is “impracticable, unnecessary, or contrary to the public interest,” 5 U.S.C. 553(b)(B). View "Tri-County Telephone Association, Inc. v. e Federal Communications Commission" on Justia Law

COA submitted a Freedom of Information Act (FOIA), 5 U.S.C. 552, request, seeking access to specified Department of Justice (DOJ) records. The response indicated that 143 pages contained records that were responsive to the request. Three cover letters and four Questions for the Record (QFR) documents were identified as responsive, each contains questions posed by members of Congress and, for two of the documents, the corresponding answers provided by DOJ. Each document is self-contained, with a single, overarching heading. The questions and answers in each document are consecutively numbered, and all but one of the documents has consecutively numbered pages. DOJ removed pages and redacted material from those documents without claiming exemption from disclosure under FOIA but claiming that these pages and material need not be disclosed because they constitute “Non-Responsive Record[s].” COA filed suit.The D.C. Circuit held that DOJ’s position is untenable. Once an agency identifies a record it deems responsive, FOIA compels disclosure of the responsive record as a unit except insofar as the agency may redact information falling within a statutory exemption. FOIA calls for disclosure of a responsive record, not just responsive information within a record. Each of the QFR documents constitutes a unitary record, as demonstrated by DOJ’s own treatment of those documents. A challenge to DOJ’s alleged policy or practice of segmenting one record into multiple records to avoid disclosure was unripe. View "Cause of Action Institute v. Department of Justice" on Justia Law

Corley was convicted of three counts of sex trafficking of a minor. Corley subsequently sent Freedom of Information Act (FOIA) requests concerning his own case. The Department of Justice withheld 323 pages of responsive records, including “the names, descriptions and other personally identifiable information” of Corley’s victims, invoking FOIA Exemption 3, which authorizes withholding of certain materials “specifically exempted from disclosure by statute,” 5 U.S.C. 552(b)(3). The “statute” relied upon was the Child Victims’ and Child Witnesses’ Rights Act, which restricts disclosure of “information concerning a child [victim or witness],” 18 U.S.C. 3509(d)(1)(A)(i).The D.C. Circuit affirmed summary judgment in favor of the government. The Child Victims’ Act qualifies as an Exemption 3 withholding statute and covers the records Corley seeks. The Act provides that “all employees of the Government” involved in a particular case “shall keep all documents that disclose the name or any other information concerning a child in a secure place” and disclose such documents “only to persons who, by reason of their participation in the proceeding, have reason to know such information.” Corley sought the documents not as a criminal defendant but rather as a member of the public. The protections apply even though the victims are no longer minors. View "Corley v. Department of Justice" on Justia Law

The issue before the Washington Supreme Court’s in this case was whether an individual’s YouTube channel qualified as “news media” for requests for certain records under the Washington Public Records Act (PRA). In 2014, Brian Green and Peter Auvil went to the County-City Building in Tacoma to file a document and pay a parking ticket. As they went through security, the guard asked to search Auvil’s bag. Auvil refused. A Pierce County deputy sheriff came to assist, and Auvil began to record a video of the interaction on his phone. Auvil continued to refuse to allow the security guard to search the bag, arguing that the security checkpoint was a violation of his privacy rights. The conversation escalated, and the deputy asked the men to leave. When Green stood too close to him, the deputy shoved Green and caused him to fall backward onto the floor. The deputy arrested Green for criminal obstruction and took him to jail. He was released approximately 24 hours later. The prosecuting attorney’s office dismissed the charge. In December 2017, Green e-mailed a PRA request to the Pierce County Sheriff’s public records office requesting “[a]ny and all records of official photos and/or birth date and/or rank and/or position and/or badge number and/or date hired and/or ID Badge for all detention center and/or jail personnel and/or deputies on duty November 26 & 27 2014.” A representative of the Sheriff’s “Public Disclosure Unit” sent 11 pages of records, but did not include photographs or dates of birth as requested, explaining that the information was exempt under the PRA. Green said he was “working on a story concerning the Pierce County Jail” and again signed his e-mail with the title, “Investigative Journalist.” Green claimed his 6,000-subscriber YouTube channel met the definition of “news media” under the PRA. The Supreme Court concluded the statutory definition of “news media” required an entity with a legal identity separate from the individual. Green did not prove that he or the Libertys Champion YouTube channel met the statutory definition of “news media,” and, thus, he was not entitled to the exempt records. Therefore, the trial court was reversed in part. The Court affirmed the trial court’s denial of Pierce County’s motion to compel discovery. View "Green v. Pierce County" on Justia Law

The FCC's orders, together with Title VI of the Communications Act, 47 U.S.C. 521, establish rules by which state and local governments may regulate cable providers. A cable operator may provide cable services only if a franchising authority—usually a local body, but sometimes a unit of state government—grants the operator a franchise. Franchising authorities often require that cable operators pay fees, provide free cable service for public buildings, and set aside channel capacity for public, educational, and governmental use. The Act limits “franchise fees” to five percent of a cable operator’s gross revenues for cable services for any 12-month period.The FCC's 2007 “First Order” announced the “mixed-use rule,” under which franchisors could not regulate the non-cable services of cable operators who were “common carriers” under the Act. A “Second Order” interpreted “franchise fee” to include noncash exactions except those exempted by statute; counted the value of those exactions toward the fee cap; and extended the “mixed-use rule” to “incumbent” cable operators, who generally were not common carriers.The 2019 Third Order concluded that most cable-related noncash exactions are franchise fees; explained why the Act does not allow franchising authorities to regulate the non-cable services of cable operators who are not common carriers; and extended FCC rulings to state (rather than just local) franchising authorities.The Sixth Circuit denied, in part, challenges by franchising authorities, upholding the FCC’s interpretation of “franchise fee” but holding that noncash cable-related exactions should be assigned a value equal to the cable operator’s marginal cost in providing them. A fee on broadband services is not imposed based on the operator’s provision of cable services and is not a “franchise fee” under section 542(g)(1); it does not count toward the cap and its imposition is not preempted. The extension to state franchisors was not arbitrary. View "City of Chicago v. Federal Communications Commission" on Justia Law

The Communications Act, 47 U.S.C. 151, requires the FCC to advance universal service. The FCC's Universal Service Fund (USF), administered by USAC, allows carriers that serve high-cost areas to recover reasonable costs “for the provision, maintenance, and upgrading of facilities and services.” High-cost area carriers may also receive support from the National Exchange Carrier Association (NECA) pool.SIC was designated as an eligible telecommunications carrier to provide service to the Hawaiian homelands and began receiving high-cost support funds and participating in the NECA pool. SIC subsequently leased a "massive and expensive" cable from a related entity. In 2010, the FCC allowed 50 percent of SIC’s lease expenses. In 2016, the FCC determined that projected growth never materialized and limited SIC to $1.9 million per year from the NECA pool. The D.C. Circuit denied an appeal.In 2011, the FCC put a $250 per-line, per-month cap on USF support; SIC had received $14,000 per line per year. In 2015, SIC's manager was convicted of tax crimes; the company had paid $4,063,294.39 of his personal expenses, which he improperly designated as business expenses. The FCC suspended SIC's ‘high-cost funding. An audit revealed that SIC improperly received millions of dollars of USF funds. The Hawaii Public Utilities Commission refused to certify SIC. The D.C. Circuit declined to order reinstatement of USF support and upheld a 2016 FCC order requiring repayment of $27,270,390.SIC filed suit in the Claims Court, alleging that the reductions in SIC’s subsidies resulted in a taking of property without just compensation, seeking $200 million in damages. The Federal Circuit affirmed the dismissal of the suit. The court’s Tucker Act jurisdiction is preempted by the Communication Act's comprehensive remedial scheme. SIC’s claims seek review of FCC decisions, which are within the exclusive jurisdiction of the courts of appeals. View "Sandwich Isles Communications, Inc. v. United States" on Justia Law

Federal Communications Commission (FCC) ownership rules limit the number of radio stations, television stations, and newspapers that a single entity may own in a given market. Section 202(h) of the Telecommunications Act of 1996 directs the FCC to review its media ownership rules every four years and to repeal or modify rules that no longer serve the public interest. In 2017, the FCC concluded that three ownership rules were no longer necessary to promote competition, localism, or viewpoint diversity and that the record did not suggest that repealing or modifying those rules was likely to harm minority and female ownership. The FCC repealed two ownership rules and modified another. The Third Circuit vacated the order.The Supreme Court reversed. The FCC’s decision to repeal or modify the three ownership rules was not arbitrary and capricious under the Administrative Procedures Act (APA); it considered the record evidence and reasonably concluded that the rules at issue were no longer necessary to serve the agency’s public interest goals of competition, localism, and viewpoint diversity and that the changes were not likely to harm minority and female ownership. The FCC acknowledged the gaps in the data sets it relied on and noted that, despite its repeated requests for additional data, it had received no countervailing evidence suggesting that changing the rules was likely to harm minority and female ownership. The FCC considered two studies that purported to show that past relaxations of the ownership rules had led to decreases in minority and female ownership levels and interpreted them differently. The APA imposes no general obligation on agencies to conduct or commission their own studies. Nothing in the Telecommunications Act requires the FCC to conduct such studies before exercising its discretion under Section 202(h). View "Federal Communications Commission v. Prometheus Radio Project" on Justia Law

Plaintiffs-Appellants Santa Fe Alliance for Public Health & Safety, Arthur Firstenberg, and Monika Steinhoff (collectively the “Alliance”) brought a number of claims under Section 704 of the Telecommunications Act of 1996 (“TCA”), New Mexico’s Wireless Consumer Advanced Infrastructure Investment Act (“WCAIIA”), the Amendments to Chapter 27 of the Santa Fe City City Code, and Santa Fe mayor proclamations. The Alliance alleged the statutes and proclamations violated due process, the Takings Clause, and the First Amendment. Through its amended complaint, the Alliance contended the installation of telecommunications facilities, primarily cellular towers and antennas, on public rights-of-way exposed its members to dangerous levels of radiation. The Alliance further contended these legislative and executive acts prevented it from effectively speaking out against the installation of new telecommunications facilities. The United States moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), and (b)(6), and the City of Santa Fe moved to dismiss under Rule 12(b)(6). The district court concluded that while the Alliance pled sufficient facts to establish standing to assert its constitutional claims, the Alliance failed to allege facts stating any constitutional claim upon which relief could be granted, thus dismissing claims against all defendants, including New Mexico Attorney General Hector Balderas. The Tenth Circuit affirmed dismissal of the Alliance's constitutional claims, finding apart from the district court, that the Alliance lacked standing to raise its takings and due process claims not premised on an alleged denial of notice. Furthermore, the Court held that while the Alliance satisfied the threshold for standing as to its First Amendment and procedural due process claims (premised on the WCAIIA and Chapter 27 Amendments), the district court properly dismissed these claims under Federal Rule of Civil Procedure 12(b)(6). View "Santa Fe Alliance v. City of Santa Fe" on Justia Law

Rio Vista Officer Collondrez responded to a hit-and-run accident. According to an internal affairs investigation, Collondrez falsified his report, arrested a suspect without probable cause, used excessive force, applied a carotid control hold on the suspect, and failed to request medical assistance. After hearings, the city agreed to pay Collondrez $35,000. Collondrez resigned. The agreement provides that Collondrez's disciplinary reports will only be released as required by law or upon legal process issued by a court of competent jurisdiction, after written notice to Collondrez. Penal Code section 832.71 was subsequently amended to require the disclosure of police officer personnel records concerning sustained findings of dishonesty or making false reports. The city responded to media requests under the Public Records Act for records, giving Collondrez prior notice of only some of the disclosures. Media outlets reported the misconduct allegations. His then-employer, Uber, fired Collondrez. Collondrez sued.The trial court partially granted the city’s to strike the complaint under California’s anti-SLAPP statute, Code of Civil Procedure 425.16, finding that Collondrez had shown a probability of prevailing on his claims for breach of contract and invasion of privacy but not on claims for interference with prospective economic advantage and intentional infliction of emotional distress. The court of appeal reversed in part, in favor of the city. The complaint arises from speech protected by the anti-SLAPP statute, but the trial court erred in finding Collondrez established a likelihood of prevailing two counts. View "Collondrez v. City of Rio Vista" on Justia Law

The Kapurs invested $300,000 in KAXT-CD, a Bay Area TV station, for 42% ownership in the Seller. In 2013, over the Kapurs' objections, the Seller proceeded with a $10.1 million sale of assets to First Buyer, which applied for the station’s FCC license. The Kapurs opposed that application, arguing that arbitration concerning the sale was ongoing. The arbitrator found that the sale did not require unanimity. The Kapurs unsuccessfully appealed in California state court and pressed on at the FCC, attacking the First Buyer’s qualifications under the “public interest” standard. The FCC concluded that the Kapurs’ allegations did not warrant a hearing and approved the application. In 2017, First Buyer sold the station to TV-49, Inc. for $2 million. The Kapurs opposed TV-49’s FCC license assignment application, arguing that First Buyer lacked the qualifications to buy the “license in the first place.” They did not challenge TV-49’s qualifications. The FCC approved the application. The D.C. Circuit dismissed an appeal for lack of standing. Even if the Kapurs prevailed on their claim of entitlement to a character hearing, they have not shown any likelihood that the FCC would find that First Buyer was of bad character or, even if it did, that it would order the unwinding of both sales and return of the station to the Seller. Nothing would stop the Seller from selling to someone else. View "Kapur v. Federal Communications Commission" on Justia Law