Justia Government & Administrative Law Opinion Summaries

The Architect of the Capitol removed high school student David Pulphus’ painting from the exhibition of the 2016 winners of the Congressional Art Competition. The painting was initially described as “a colorful landscape of symbolic characters representing social injustice, the tragic events in Ferguson, Missouri, and the lingering elements of inequality in modern American society.” It was removed after protests by police unions and a FOX news personality, based on a newspaper story that described it as “depicting police officers as pigs with guns terrorizing a black neighborhood.” After unsuccessfully asking that the House Office Building Commission overrule the removal decision, Pulphus and Missouri Congressman Clay unsuccessfully sought a preliminary injunction, alleging violations of their First Amendment rights. The D.C. Circuit dismissed an appeal as moot; the 2016 Congressional Art Competition is over and no other concrete, redressable injury is alleged that was caused by the Architect’s removal decision. View "Pulphus v. Ayers" on Justia Law

The Fifth Circuit denied WCX's petition for review of the FCC's order denying its application for review to apply the Automatic Roaming Rule to its dispute. The court held that any alleged error that the Commission may have made in stating that WCX requested Mobile Broadband Internet Access Services was harmless and therefore did not warrant vacatur; the Commission did not act arbitrarily or capriciously in concluding that the Data Roaming Rule applied to this dispute; and the Commission's determination that AT&T's proposed rates were commercially reasonable was supported by substantial evidence and not arbitrary and capricious. View "Worldcall Interconnect, Inc. v. FCC" on Justia Law

Petitioners challenged the FCC's 2017 order altering regulations for business data services (BDS). ILEC Petitioners challenged new price cap rates in the order and CLEC Petitioners challenged most of the other changes in the order. The Eighth Circuit granted CLEC's petitions in part and vacated in part. The court denied the petitions for review on all other issues.The court held that the FCC's 2016 notice gave CLEC adequate notice of large scale deregulation and of the adopted Competitive Market Test, but the notice failed to give sufficient notice of its ending of ex ante regulation of transport services. This failure prevented interested parties from informed participation in that portion of the rulemaking and release of a draft of the proposed order did not remedy the FCC's violation of its obligations under the Administrative Procedure Act. Therefore, the court vacated that portion of the final rule affecting time division multiplex transport services and remanded for further proceedings. The court rejected challenges to the FCC's adoption of the Competitive Market Test. The court also held that the FCC did not act unreasonably in excluding low bandwidth Ethernet business data services from price caps; in declining to extend the Interim Wholesale Access Rule to business data services; and in setting the "X-factor" annual price cap reduction at 2%. View "Citizens Telecommunications Company of Minnesota v. FCC" on Justia Law

In 2015, the Sacramento News and Review (the newspaper), published by appellant Chico Community Publishing, Inc., investigated Sacramento’s then-Mayor Kevin Johnson and his staff’s use of city resources in the take over and eventual bankruptcy of the National Conference of Black Mayors (the National Conference). As part of that investigation, the newspaper made a request to the City of Sacramento (the City) pursuant to the Act for e-mails in the City’s possession that were sent from private e-mail accounts associated with Johnson’s office. In the City’s review of the records on its servers, it identified communications between Johnson’s office and the law firm which represented the National Conference in its bankruptcy proceedings and Johnson, along with the National Conference, in litigation connected with Johnson’s contested election as the National Conference’s president. The City flagged these e-mails as potentially containing attorney-client privileged information. It then contacted the law firm to notify it that the City was compelled to release these emails because the City had no authority to assert attorney-client privilege over the records on behalf of outside counsel. The law firm contacted the newspaper and asked it to agree the City could withhold any records it determined included attorney-client communications. The newspaper refused and contacted the City, which admitted telling the law firm that some of the emails may have been privileged. Following the newspaper’s refusal to allow the City to withhold e-mails containing attorney-client communications, the National Conference, Johnson in his official capacity as the former president of the National Conference, and Edwin Palmer in his official capacity as Chapter 7 Trustee for the National Conference filed a petition for peremptory writ of mandate against the City and its City Attorney’s Office to prevent disclosure of records to the newspaper. A requester of public records who successfully litigates against a public agency for disclosure of those records is entitled to reasonable attorney fees under the California Public Records Act. The issue this case presented for the Court of Appeal's review was whether the Act also allowed for an award of attorney fees to a requester when the requester litigates against an officer of a public agency in a mandamus action the officer initiated to keep the public agency from disclosing records it agreed to disclose. The Court concluded the answer was "no." View "Nat'l Conference of Black Mayors v. Chico Community Publishing, Inc." on Justia Law

Verizon filed suit challenging the Board's denial of its application for a special use permit to construct a cellular communications tower. The district court dismissed the action as time-barred under the thirty-day limitations period of the Telecommunications Act of 1996 (TCA). The Eleventh Circuit reversed, holding that the Board's action became final not when the Clerk entered a document in the Ordinances and Resolutions books, as the district court found, but when the Board approved the minutes of the meeting at which it voted on Verizon's application. The court reasoned that only when an applicant receives sufficient notice does the decision become "final," and only then can the thirty-day clock begin to run. In this case, the minutes, created pursuant to published statute, provided the notice that due process and the Supreme Court's interpretation of the TCA required. View "Athens Cellular, Inc. v. Oconee County, Georgia" on Justia Law

Verizon filed suit challenging the Board's denial of its application for a special use permit to construct a cellular communications tower. The district court dismissed the action as time-barred under the thirty-day limitations period of the Telecommunications Act of 1996 (TCA). The Eleventh Circuit reversed, holding that the Board's action became final not when the Clerk entered a document in the Ordinances and Resolutions books, as the district court found, but when the Board approved the minutes of the meeting at which it voted on Verizon's application. The court reasoned that only when an applicant receives sufficient notice does the decision become "final," and only then can the thirty-day clock begin to run. In this case, the minutes, created pursuant to published statute, provided the notice that due process and the Supreme Court's interpretation of the TCA required. View "Athens Cellular, Inc. v. Oconee County, Georgia" on Justia Law

Verizon Wireless obtained approval from the City of San Diego (the City, together respondents) to construct a wireless telecommunications facility (WCF, the Project) in Ridgewood Neighborhood Park (the Park), a dedicated park. Don't Cell Our Parks (DCOP), a not-for-profit entity, filed a petition for writ of mandate challenging the City's determination. The trial court denied the petition, concluding that under San Diego City Charter section 55 (Charter 55), the City had control and management of dedicated parks and the discretion to determine whether a particular park use would change the use or purpose of the Park and thus require a public vote. The Court of Appeal concluded the Project did not constitute a changed use or purpose that required voter approval. DCOP also claimed the Project did not qualify under the California Environmental Quality Act (CEQA) for a categorical exemption under CEQA Guidelines section 153031 which pertained to the construction of new small facilities. The Court rejected this argument too, and thus affirmed the trial court in full. View "Don't Cell Our Parks v. City of San Diego" on Justia Law

The Fourth Circuit vacated the district court's dismissal of plaintiff's claim that PDR Network violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, by sending unsolicited advertisement by fax. Plaintiff argued that the district court erred in declining to defer to a 2006 Rule promulgated by the FCC that interpreted some provisions of the TCPA. Plaintiff specifically contended that the Hobbs Act, 28 U.S.C. 2342 et seq., required the district court to defer to the FCC's interpretation of the term "unsolicited advertisement." Furthermore, plaintiff claimed that the district court erred by reading the rule to require that a fax have some commercial aim to be considered an advertisement. The court held that the Hobbs Act deprived district courts of jurisdiction to consider the validity of orders like the 2006 FCC Rule, and that the district court's reading of the 2006 FCC Rule was at odds with the plain meaning of its text. View "Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC" on Justia Law

This case arose from an agreement the parties entered into for the sale of appellant's radio station to Entercom upon approval by the FCC. The DC Circuit denied appellant's appeal and dismissed as moot his central claim challenging Entercom's legal eligibility to acquire the station. The court held that appellant's challenge to the FCC's application of the pre-2002 Order's local-market definition was moot and his remaining challenges to the FCC decision lacked merit. Accordingly, the court dismissed in part and denied in part. View "Stolz v. FCC" on Justia Law

Superior, a nonprofit corporation, operates 21 Michigan radio broadcast stations. The City of Riverview owns a 320-foot broadcast tower. With an FCC permit to operate a low-powered FM radio broadcast station, Superior contracted to operate broadcasting equipment on the city-owned tower. Superior installed a single-bay antenna at 300 feet and a transmitter in the equipment shelter. The agreement limited modifications to Superior’s equipment; upgrades required the city’s prior approval. Without the city’s knowledge, Superior obtained a modification of its FCC permit to allow a significant increase in broadcast power. In response to Superior’s request, the city engaged a consultant, who reported that the proposed four-bay antenna would cause Superior’s equipment to occupy 30 feet of tower space instead of its current three feet of space; would expose individuals around the tower to unsafe levels of radiofrequency electromagnetic radiation; and might create radio interference with other tower tenants. The Sixth Circuit affirmed summary judgment in favor of the city, rejecting arguments under the Telecommunications Act, 47 U.S.C. 151. The Agreement unambiguously granted the city the right to refuse Superior’s requested upgrade, which the city properly exercised. The city did not enact a “regulation” within the meaning of the Act but acted in its proprietary capacity and had a rational basis for its actions, so that Superior’s constitutional claims failed. View "Superior Communications v. City of Riverview" on Justia Law