Justia Government & Administrative Law 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

Tri-Corp, a nonprofit corporation, offered low-income housing to mentally disabled persons in Milwaukee. Its lender, the Wisconsin Housing and Economic Development Authority, filed a foreclosure action. Tri-Corp blamed others for its financial problems and named several third-party defendants. The state court allowed the foreclosure and rejected the third-party claims except those against Milwaukee Alderman Bauman, who removed the claims to federal court. Tri-Corp contends that Bauman is liable under 42 U.S.C. 1983 for issuing statements critical of its operations and for lobbying other officials to rule against it in administrative proceedings, in violation of the Fair Housing Act, the Rehabilitation Act, and the Americans with Disabilities Act. The Seventh Circuit joined six circuit courts in holding that section 1983 cannot be used to alter the categories of persons potentially liable in private actions under the Rehabilitation Act or the Americans with Disabilities Act. Tri-Corp did not allege that Bauman himself denied it any right under the Fair Housing Act, or even was a member of a public body that did so. Tri-Corp accuses Bauman of speech, not action. Public officials enjoy the right of free speech and the Noerr-Pennington doctrine applies to claims under the Act, allowing governmental officials to try to persuade other officials to take particular actions. View "Tri-Corp Hous. Inc. v. Bauman" on Justia Law

The City of Eugene sued to collect from Comcast of Oregon II, Inc. (Comcast) a license fee that the city, acting under a municipal ordinance, imposes on companies providing “telecommunications services” over the city’s rights of way. Comcast did not dispute that it used the city’s rights of way to operate a cable system. However it objected to the city’s collection effort and argued that the license fee was either a tax barred by the Internet Tax Freedom Act (ITFA), or a franchise fee barred by the Cable Communications and Policy Act of 1984 (Cable Act). The city read those federal laws more narrowly and disputed Comcast’s interpretation. The trial court rejected Comcast’s arguments and granted summary judgment in favor of the city. The Court of Appeals affirmed. Finding no reversible error, the Supreme Court affirmed. View "City of Eugene v. Comcast of Oregon II, Inc." on Justia Law

New Cingular Wireless PCS LLC, an affiliate of AT&T Mobility LLC, provides both wireless voice telephone services and data services to customers in the city of Clyde Hill. Clyde Hill imposes a local utility tax on wireless telephone services, which applies to both voice and data services. New Cingular had for years collected utility taxes from Clyde Hill's residents on all charges for wireless and telephone voice and data services, and paid the tax to the city. In this case, the issue presented for the Supreme Court's review was whether the cellular service provider could challenge a city fine through an action for declaratory judgment in superior court. The trial court dismissed, holding that a declaratory judgment action was improper and judicial review should have been sought by way of a statutory writ of review under RCW 7 .16.040. The Court of Appeals reversed, reinstating the declaratory action and remanding for a decision on the merits. Finding no reversible error in the Court of Appeals' judgment, the Supreme Court affirmed. View "New Cingular Wireless PCS, LLC v. City of Clyde Hill" on Justia Law

Section 202(h) of the 1996 Telecommunications Act, 110 Stat. 56, requires the Federal Communications Commission to periodically examine its broadcast ownership rules to limit consolidation in the industry. After the Third Circuit reviewed the Commission’s 2002 and 2006 reviews of its ownership rules, “the process broke down.” The 2010 and 2014 reviews are not complete. In 2016, the Third Circuit held that the Commission has unreasonably delayed action on its definition of an “eligible entity,” a term it has attempted to use as a lynchpin for initiatives to promote minority and female broadcast ownership, and ordered mediation. The court speculated that it might be necessary to invalidate FCC rules in the future if the Commission does not act quickly to carry out its legislative mandate. The court vacated a rule based on Commission’s 2014 determination that parties were evading its limits on the number of television stations that an entity can own through the influence exerted by advertising contracts known as joint sales agreements. The rule was procedurally invalid because it was adopted even though the Quadrennial Review cycle was severely backlogged. View "Howard Stirk Holdings LLC v. Fed. Commc'ns Comm'n" on Justia Law

AT&T sought to acquire T-Mobil, then a subsidiary of Deutsche Telekom, and merge its operations and infrastructure into itself. For months after the proposal was announced, the Federal Communications Commission (FCC), the U.S. Department of Justice, and state regulatory agencies, investigated to determine whether the merger would have adverse effects on competition and customer service, and if so, whether mitigation measures were warranted as a condition of approval. The California Public Utilities Commission (CPUC) sought to complete the investigation of a complex transaction having national scope within a few months because FCC proceedings were unfolding on an expedited schedule. CPUC invited participation from intervenors, including TURN and CforAT. TURN apparently took a leading role and won several procedural victories. Before CPUC completed comments for submission to the FCC, AT&T and Telekom unexpectedly announced the withdrawal of their proposed merger. CPUC dismissed the proceeding as moot, but decided several collateral matters, and stated that requests for intervenor compensation “are appropriate.” TURN and CforAT sought intervenor compensation. Based on detailed findings explaining their “substantial contributions,” CPUC issued awards over opposition by proponents of the merger. The court of appeal vacated the awards without prejudice to renewal and redetermination of the requests. The awards were consistent with CPUC’s long-standing position and with the statutory scheme. The court rejected the “broad” rationale relied upon by CPUC in the orders. View "New Cingular Wireless PCS v. Pub. Utils. Comm'n of Cal." on Justia Law

In 2010 the IRS began to pay unusual attention to applications for exemption from federal taxes under Internal Revenue Code 501(c) coming from groups with certain political affiliations. It used "inappropriate criteria" to identify organizations with "Tea Party’" in their names, expanded the criteria to include "Patriots and 9/12," and gave heightened scrutiny to organizations concerned with “government spending, government debt or taxes,” “lobbying to ‘make America a better place to live[,]’” or “criticiz[ing] how the country is being run[.]” The IRS used a “‘Be On the Lookout’ listing” for more than 18 months. Applicants flagged by the criteria were sent to a “team of specialists,” where they experienced significant delays and requests for unnecessary information. The IRS demanded that many groups provide names of donors; a list of issues important to the organization and its position regarding such issues; and political affiliations. After the release of the Inspector General’s report, the plaintiffs sued, citing the Privacy Act, 5 U.S.C. 552a, the First and Fifth Amendments, and the Internal Revenue Code’s prohibition on the unauthorized inspection of confidential “return information,” 26 U.S.C. 6103(a), 7431. Plaintiffs sought discovery of basic information relevant to class certification. The district court ordered production of “Lookout” lists. A year later, the IRS had not complied, but sought a writ of mandamus. The Sixth Circuit denied that petition and ordered the IRS to comply. View "United States v. NorCal Tea Party Patriots" on Justia Law

The County petitions for review of an FCC order, which issued rules implementing Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, 47 U.S.C. 1455(a), also known as the Spectrum Act. The County contends that the procedures established in the Order conscript the states in violation of the Tenth Amendment, and that the Order unreasonably defines several terms of the Spectrum Act. The court concluded that the FCC’s “deemed granted” procedure comports with the Tenth Amendment where the Order does not require the states to take any action whatsoever. The court also concluded that the FCC has reasonably interpreted the ambiguous terms of Section 6409(a): "substantially change" and "base station." Accordingly, the court denied the petition for review. View "Montgomery County v. United States" on Justia Law

The members of the Pennsylvania Public Utility Commission (PPUC) and Core Communications, Inc., appealed a District Court’s grant of summary judgment in favor of AT&T Corp. Core billed AT&T for terminating phone calls from AT&T’s customers to Core’s Internet Service Provider (ISP) customers from 2004 to 2009. When AT&T refused to pay, Core filed a complaint with the PPUC, which ruled in Core’s favor. AT&T then filed suit in federal court seeking an injunction on the ground that the PPUC lacked jurisdiction over ISP-bound traffic because such traffic is the exclusive province of the Federal Communications Commission. After review of the matter, the Third Circuit found that the FCC’s jurisdiction over local ISP-bound traffic was not exclusive and the PPUC orders did not conflict with federal law. As such, the Court vacated the District Court’s order and remanded this case for entry of judgment in favor of Core and the members of the PPUC. View "AT&T Corp v. Core Communications Inc" on Justia Law

Dothan/Houston County Communications District and Ozark/Dale County E-911, Inc. ("the districts"), sued Century Tel of Alabama, LLC ("CTA"), and Qwest Communications Company, LLC (collectively, "the defendants"), seeking, among other things, to recover E-911 charges that the defendants were alleged to have not properly billed and collected in accordance with the Emergency Telephone Service Act ("ETSA"). The defendants moved the circuit court to dismiss the complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P. The circuit court denied the defendants' motion. The defendants then petitioned the Supreme Court for permission to appeal from the circuit court's interlocutory order. The defendants contended that the "repealed-statute rule" prohibited the districts from suing to collect unpaid 911 charges requested to be levied prior to October 1, 2013. Specifically, the defendants argued that no cause of action could be brought for violation of a statute after that statute had been repealed. Further, the defendants argued that the districts' claims were barred because the ETSA did not authorize a private right of action against telephone-service providers for failing to bill and collect the 911 charges from subscribers. Upon review, the Supreme Court affirmed the circuit court. The Court found the statute at issue here was not repealed by subsequent acts by the Legislature, but amended, and civil actions were expressly authorized by Alabama law to bill and collect the 911 fees used by E-911 services to operate and maintain the emergency-communications system. View "Century Tel of Alabama, LLC v. Dothan/Houston Cty Comm. Dist." on Justia Law