Justia Government & Administrative Law Opinion Summaries

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its Preemption Directive, which would have barred states from imposing any rule or requirement that the Commission "repealed or decided to refrain from imposing" in the Order or that is "more stringent" than the Order.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

The Supreme Court affirmed the judgment of the court of appeals concluding that the circuit court had jurisdiction in this matter and denying a writ of prohibition preventing the circuit court from adjudicating an action filed by the Lexington Herald-Leader, holding that, as a matter of law, the circuit court had subject-matter jurisdiction over the underlying action filed by the Herald-Leader.In the underlying action, the Herald-Leader sought judicial review of the determination of the Kentucky Legislative Research Commission (LRC) that certain records requested by the Herald-Leader were not subject to disclosure under Kentucky's Open Records Act. Appellants, acting co-directors of the LRC, sought a writ of prohibition preventing the circuit court from adjudicating the action, asserting that the General Assembly had not granted the circuit court subject-matter jurisdiction to hear the merits of Herald-Leader's claims. The court of appeals denied the writ. The Supreme Court affirmed, holding (1) the circuit court had subject-matter jurisdiction to adjudicate the underlying case arising from the Herald-Leader's legislative records request; and (2) the trial court did not lack jurisdiction based on the separation of powers doctrine. View "Harrison v. Hon. Phillip J. Shepherd" on Justia Law

Under the Communications Act of 1934, 47 U.S.C. 151, the Federal Communications Commission had rules governing ownership of broadcast media to promote “competition, diversity, and localism.” The 1996 Telecommunications Act, Section 202(h) requires the Commission to review those rules regularly to “determine whether any of such rules are necessary in the public interest.” The Third Circuit has ruled on previous reviews. Following a remand, the Commission failed to complete its 2010 review cycle before the start of the 2014 cycle. The Third Circuit found the FCC had unreasonably delayed action and remanded several issues concerning the broadcast ownership rules and diversity initiatives. The Commission then substantially changed its approach to regulation of broadcast media ownership, issuing an order that retained almost all of its existing rules, effectively abandoning its long-running efforts to change those rules since the first round of litigation. The Commission then changed course, granting petitions for rehearing and repealing or otherwise scaling back most of those same rules. It also created a new “incubator” program designed to help new entrants into the broadcast industry. The Third Circuit vacated and remanded most of the Commission’s actions. Although some of those actions, including the incubator program, were not unreasonable, the Commission did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities. View "Prometheus Radio Project v. Federal Communications Commission" on Justia Law

Pulitzer Prize-winning journalist Golden was researching Golden’s then-forthcoming book, Spy Schools: How the CIA, FBI, and Foreign Intelligence Secretly Exploit America’s Universities. Golden requested documents from public universities, including three requests to the New Jersey Institute of Technology (NJIT) under New Jersey’s Open Public Records Act, N.J. Stat. 47:1A-1–47:1A-13 (OPRA). Many of the NJIT documents originated with the FBI and were subject to prohibitions on public dissemination. The FBI directed NJIT to withhold most of the records. NJIT obliged, claiming exemption from disclosure. After this suit was filed, NJIT and the FBI reexamined the previously withheld records and produced thousands of pages of documents, formerly deemed exempt. Golden then sought prevailing plaintiff attorneys’ fees under OPRA. The district court denied the fee motion. The Third Circuit reversed. Under the catalyst theory, adopted by the Supreme Court of New Jersey, plaintiffs are entitled to attorneys’ fees if there exists “a factual causal nexus between [the] litigation and the relief ultimately achieved” and if “the relief ultimately secured by plaintiffs had a basis in law.” Before Golden filed suit, NJIT had asserted OPRA exemptions to justify withholding most of the requested records. Post-lawsuit, NJIT abandoned its reliance on those exemptions and produced most of the records. Golden’s lawsuit was the catalyst for the production of documents and satisfied the test. That NJIT withheld records at the behest of the FBI does not abdicate its role as the records custodian. View "Golden v. New Jersey Institute of Technology" on Justia Law

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

In 2005 Paramount leased a parcel of highway-adjacent property in Bellwood, Illinois, planning to erect a billboard. Paramount never applied for a local permit. When Bellwood enacted a ban on new billboard permits in 2009, Paramount lost the opportunity to build its sign. Paramount later sought to take advantage of an exception to the ban for village-owned property, offering to lease a different parcel of highway-adjacent property directly from Bellwood. Bellwood accepted an offer from Image, one of Paramount’s competitors. Paramount sued Bellwood and Image, alleging First Amendment, equal-protection, due-process, Sherman Act, and state-law violations. The Seventh Circuit affirmed summary judgment in favor of the defendants. Paramount lost its lease while the suit was pending, which mooted its claim for injunctive relief from the sign ban. The claim for damages was time-barred, except for an alleged equal-protection violation. That claim failed because Paramount was not similarly situated to Image; Paramount offered Bellwood $1,140,000 in increasing installments over 40 years while Image offered a lump sum of $800,000. Bellwood and Image are immune from Paramount’s antitrust claims. The court did not consider whether a market-participant exception to that immunity exists because Paramount failed to support its antitrust claims. View "Paramount Media Group, Inc. v. Village of Bellwood" on Justia Law

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

The Supreme Court reversed the order of the circuit court granting Plaintiff's motion for summary judgment and finding that the City of Fort Smith and its directors violated the open-meeting provisions of the Arkansas Freedom of Information Act (FOIA) when three of the city directors and the city administrator exchanged emails relating to city business, holding that the email communication did not violate the open-meeting provisions set forth in Ark. Code Ann. 25-19-106.Specifically, the Court held (1) FOIA's open-meeting provisions apply to email and other forms of electronic communication between governmental officials just as they apply to in-person or telephonic conversations; but (2) the emails in this case were only background information and non-decisional information sharing, and therefore, there was no violation of the of the open-meeting provisions. View "City of Fort Smith v. Wade" on Justia Law

PDR compiles information about prescription drugs. Its producer sent health care providers faxes stating that they could reserve a free copy of a new e-book PDR. A recipient filed a putative class action, claiming that the fax was an “unsolicited advertisement” prohibited by the Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(C). The Fourth Circuit vacated the dismissal of the suit, reasoning that the district court was required to adopt the interpretation of “unsolicited advertisement” set forth in a 2006 FCC Order: “any offer of a free good or service.” The court noted that the Hobbs Act provides that courts of appeals have “exclusive jurisdiction to enjoin, set aside, suspend ... or to determine the validity of” certain “final orders of the Federal Communication Commission,” in a challenge filed within 60 days after the entry of the order, 28 U.S.C. 2342(1). The Supreme Court vacated and remanded for consideration of preliminary questions that were not considered below. Is the Order the equivalent of a “legislative rule,” issued by an agency pursuant to statutory authority, having the “force and effect of law” or is it the equivalent of an “interpretive rule,” which simply advises the public of the agency’s construction of the statutes and rules it administers? If the Order is the equivalent of an “interpretive rule,” a district court may not be required to adhere to it. In addition, did the Hobbs Act’s exclusive-review provision afford a “prior” and “adequate” opportunity to seek judicial review of the Order under 5 U.S.C. 703? If not, the Administrative Procedure Act may permit PDR to challenge its validity in this enforcement proceeding. View "PDR Network, LLC v. Carlton Harris Chiropractic, Inc." on Justia Law

New York requires cable operators to set aside channels for public access. Those channels are operated by the cable operator unless the local government chooses to operate the channels or designates a private entity as the operator. New York City designated a private nonprofit corporation, MNN, to operate public access channels on Time Warner’s Manhattan cable system. Respondents produced a film critical of MNN. MNN televised the film. MNN later suspended Respondents from all MNN services and facilities. They sued, claiming that MNN violated their First Amendment free-speech rights. The Second Circuit partially reversed the dismissal of the suit, concluding that MNN was subject to First Amendment constraints.The Supreme Court reversed in part and remanded. MNN is not a state actor subject to the First Amendment. A private entity may qualify as a state actor when the entity exercises “powers traditionally exclusively reserved to the State” but “very few” functions fall into that category. Operation of public access channels on a cable system has not traditionally and exclusively been performed by government. Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed and does not automatically transform a private entity into a state actor. The City’s designation of MNN as the operator is analogous to a government license, a government contract, or a government-granted monopoly, none of which converts a private entity into a state actor unless the private entity is performing a traditional, exclusive public function. Extensive regulation does not automatically convert a private entity's action into that of the state. The City does not own, lease, or possess any property interest in the public access channels. View "Manhattan Community Access Corp. v. Halleck" on Justia Law