Justia Government & Administrative Law Opinion Summaries

Articles Posted in Communications Law
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After Air Wisconsin stopped flying aircraft that Hoeper was certified to fly, Hoeper failed three attempts to gain new certification. Air Wisconsin gave him one final chance. He performed poorly during required training and responded angrily, tossing his headset, using profanity, and making accusations against the instructor. Airline officials discussed the outburst, Hoeper’s impending termination; the history of assaults by disgruntled employees; and the chance that Hoeper, a Federal Flight Deck Officer (FFDO), permitted “to carry a firearm while engaged in providing air transportation,” 49 U.S.C. 44921(f)(1) might be armed. An airline executive notified the TSA that Hoeper “was an FFDO who may be armed,” that the airline was “concerned about his mental stability and the whereabouts of his firearm,” and that an “[u]nstable pilot in [the] FFDO program was terminated today.” The TSA removed Hoeper (returning home from training) from his plane, searched him, and questioned him about the location of his gun. Hoeper sued for defamation. The Aviation and Transportation Security Act (ATSA), 49 U.S.C. 44941(a), provides airlines and employees immunity for reporting suspicious behavior except where such disclosure is “made with actual knowledge that the disclosure was false, inaccurate, or misleading” or “made with reckless disregard as to the truth or falsity of that disclosure.” The jury found for Hoeper. The Colorado Supreme Court affirmed. The Supreme Court reversed. ATSA immunity, patterned after the Times v. Sullivan “actual malice” standard, may not be denied to materially true statements, even if made recklessly; a falsehood cannot be material absent a substantial likelihood that a reasonable security officer would consider it important in determining a response. Any falsehoods in the statement to the TSA were not material. A reasonable TSA officer, knowing that Hoeper was an FFDO, upset about losing his job, would have wanted to investigate whether he was armed. While Hoeper had not actually been fired at that time, everyone knew that termination was imminent. It would be inconsistent with the ATSA’s text and purpose to expose Air Wisconsin to liability because the manager who placed the call could have chosen a slightly better phrase to articulate the airline’s concern. View "Air Wisconsin Airlines Corp. v. Hoeper" on Justia Law

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In Wisconsin, Register of Deeds is an elected position. If a vacancy occurs mid-term, the governor may appoint an interim Register for any unexpired portion of the term. The Marinette County Register announced her mid-term retirement. Chasensky, then employed as Chief Deputy Register of Deeds, sought the interim appointment. Chasensky was interviewed by Esser, Walker’s appointments official, who informed Chasensky that he would forward her application to Governor Walker for appointment to the position. Esser subsequently learned that Chasensky was involved in a personal bankruptcy proceeding. Esser informed Chasensky that Walker would not appoint her as interim Register. Chasensky claims that Werwie, Walker’s official spokesperson, publically broadcast that she was not appointed because she was in a bankruptcy proceeding and that “[d]erogatory comments and innuendo regarding [her] bankruptcy, personal financial matters and character which impugned and harmed [her] professional and personal reputation were intentionally publically disclosed by Governor Walker and Mr. Werwie” when Governor Walker spoke on the FOX television network. Werwie publically announced that Walker had planned to appoint her until he learned of her bankruptcy. In her suit alleging violation of privacy rights, employment rights, and of 11 U.S.C. 525(a) (bankruptcy discrimination), the district court held that the defendants waived qualified immunity by failing to raise it before their motion to dismiss the amended complaint. The Seventh Circuit reversed; the defendants are entitled to qualified immunity from Chasensky’s privacy and equal protection claims. View "Chasensky v. Walker" on Justia Law

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Council Tree Investors, Inc. requested nullification of the FCC's auction of the 700-MHz wireless spectrum conducted in early 2008 pursuant to a Waiver Order. Council Tree filed a Petition for Reconsideration of the Waiver Order in 2007, as well as a Supplement to the Waiver Reconsideration Petition in 2011. In its Waiver Reconsideration Order, the FCC dismissed the Waiver Reconsideration Petition as moot and dismissed the Supplement as untimely. Finding no reversible error, the Tenth Circuit affirmed the FCC's decision. View "Council Tree Investors, Inc., et al v. FCC" on Justia Law

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In 2007, the FCC promulgated a rule requiring "hybrid" cable companies to "downconvert" from digital to analog broadcast signals from must-carry stations for subscribers with analog television sets. In 2012, the FCC allowed the downconversion requirement to expire and promulgated a new rule that allowed cable operators to provide conversion equipment to analog customers, either for free or at an affordable cost (Sunset Order). Petitioners, a group of must-carry broadcasters, sought review of the Sunset Order, arguing that the FCC's new rule could not be squared with Congress's mandate that must-carry broadcast signals "shall be viewable via cable on all television receivers of a subscriber which are connected to a cable system" pursuant to the Cable Television Consumer Protection and Competition Act of 1992 (the Cable Act), 47 U.S.C. 534(b)(7). The court concluded that petitioners' claims lack merit. The FCC's 2007 rule was not mandated by the statute. Rather, the rule was promulgated by the Commission as a stopgap measure. Since 2007, the telecommunications market has changed dramatically. Petitioners' argument effectively freezes time in the face of shifting technology and finds no support in the law. Accordingly, the court denied the petition for review. View "Agape Church, Inc, et al. v. FCC, et al." on Justia Law

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Sprint, a national telecommunications company, declined to pay intercarrier access fees imposed by Windstream, an Iowa telecommunications carrier, for long distance Voice over Internet Protocol (VoIP) calls, concluding that the Telecommunications Act of 1996 (TCA) preempted intrastate regulation of VoIP traffic. Windstream threatened to block Sprint customer calls; Sprint sought an injunction from the Iowa Utilities Board (IUB). Windstream retracted its threat, and Sprint sought to withdraw its complaint. Concerned that the dispute would recur, IUB continued the proceedings, ruling that intrastate fees applied to VoIP calls. Sprint sought a declaration that the TCA preempted the IUB decision. Sprint also sought review in Iowa state court. Invoking Younger v. Harris, the district court abstained from adjudicating Sprint’s complaint in deference to the state-court proceeding. The Eighth Circuit affirmed, concluding that Younger abstention was required because the state-court review concerned Iowa’s important interest in regulating and enforcing state utility rates. The Supreme Court reversed. The case does not fall within any of the classes of exceptional cases for which Younger abstention is appropriate to avoid federal intrusion into ongoing state criminal prosecutions; interfering with pending “civil proceedings . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions;” and certain civil enforcement proceedings. IUB’s proceeding was not criminal and did not touch on a state court’s ability to perform its judicial function. Nor is the IUB order an act of civil enforcement of the kind to which Younger has been extended; the proceeding is not “akin to a criminal prosecution,” nor was it initiated by “the State in its sovereign capacity,” to sanction a wrongful act. The court rejected an argument that once Sprint withdrew its complaint the proceedings became, essentially, a civil enforcement action. IUB’s authority was invoked to settle a civil dispute between private parties. View "Sprint Commc'ns, Inc. v. Jacobs" on Justia Law

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Since 2001, Callaghan has worked part-time at the South Portland Library. Edwards works for the Parks and Recreation Department about four hours per week. Both are subject to a personnel policy, which, following 2010-2011 amendments, provides that city employees may not seek or accept nomination or election to any South Portland elective office; use the influence of their employment for or against any candidate for city elective office; circulate petitions or campaign literature for any city elective office; solicit or receive subscriptions, contributions or political service from any person for or against any candidate for any city elective office; or use city property to assist or advocate for or against any candidate. Callaghan has served on the School Board since 2007. When Callaghan sought reelection in 2011, the City Clerk stated that the personnel policy amendments prevented placement of her name on the ballot. Edwards had served on the Board for 18 years. In 2010, Edwards expressed interest in filling a vacancy on the Board. After the City Clerk questioned whether Edwards could be appointed given his city employment, Edwards did not pursue the appointment. Edwards and Callaghan filed a complaint, 42 U.S.C. 1983, asserting that the policy was an unconstitutional restraint on political speech. The trial court entered partial summary judgment for the employees and an injunction barring enforcement of a prohibition on any city employee seeking election to or serving on the School Board or, on their own time, from circulating petitions or campaign literature and soliciting or receiving contributions or political service for or against candidates in School Board elections. The Maine Supreme Court affirmed as to the employees, but vacated the judgment to the extent that it invalidates the policy as to employees who were not parties. View "Callaghan v. City of South Portland" on Justia Law

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This appeal concerned the City of Milton's decision to deny T-Mobile's applications for permits to build three cell phone towers. At issue was the writing requirement of the Telecommunications Act, 47 U.S.C. 332(c)(7)(B)(iii), which stated that "[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless services shall be in writing and supported by substantial evidence contained in a written record." The court concluded that T-Mobile had access to documents - including transcripts of the planning commission's hearings, letters the city sent to T-Mobile, and detailed minutes of the city council hearings- before its deadline for filing the lawsuit and collectively, these documents they were enough to satisfy the writing requirement of section 332(c)(7)(B)(iii). Accordingly, the court reversed the judgment of the district court and remanded for further proceedings. View "T-Mobile South, LLC v. City of Milton, Georgia" on Justia Law

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Time Warner petitioned for review of the FCC's 2011 order promulgated under section 616(a)(3) and (5) of the Communications Act of 1934 (Communications Act), as amended by the Cable Television Consumer Protection and Competition Act of 1992 (Cable Act), 47 U.S.C. 536(a)(3), (5). Section 616(a)(3) and (5) and that part of the 2011 Order establishing the standard for demonstrating a prima facie violation of these statutory provisions (the program carriage regime) were intended to curb anticompetitive behavior by limiting the circumstances under which a distributor of video programming could discriminate against unaffiliated networks that provided such programming. The court concluded that the program carriage regime did not violate the First Amendment where its case-specific standards for identifying affiliation-based discrimination served important government interests in promoting competition and diversity in an industry still posing serious competitive risks and were narrowly tailored not to burden substantially more speech than necessary to further those interests. The court concluded, however, that the 2011 Order was substantive and therefore subject to the notice-and-comment requirements of the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq. Because the FCC failed to comply with such requirements, the court granted the petition for review insofar as it raised an APA challenge. View "Time Warner Cable Inc. v. FCC" on Justia Law

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Respondent Northern New England Telephone Operations, LLC d/b/a FairPoint Communications – NNE (FairPoint), appealed two orders of the New Hampshire Public Utilities Commission (PUC). Petitioners are all “competitive local exchange carriers.” The PUC ordered Verizon New Hampshire to stop imposing “carrier common line charges” upon certain telephone calls that did not require the use of Verizon’s common line. The PUC found that Verizon did not provide switched access service in connection with these calls. Under the plain language of Verizon’s access tariff, the Supreme Court concluded that Verizon was allowed to impose a “carrier common line access charge” (CCL charge) upon “each aspect of switched access service,” and that “common line access” is only one component of switched access service. It was undisputed that Verizon provided other aspects of switched access service with respect to the calls at issue. Following the Supreme Court's decision, the PUC reopened the proceeding and ordered FairPoint, which had purchased Verizon’s New Hampshire assets, to modify the Tariff to clarify that it could “charge CCL only when a FairPoint common line is used in the provision of switched access services.” Ultimately, the PUC approved in part, and rejected in part, tariff revisions that FairPoint submitted. The PUC approved FairPoint’s revision of the CCL charge, but rejected FairPoint’s proposal to increase the rate of an interconnection charge under the Tariff. The PUC granted the petitioners’ motion to dismiss the portion of the docket related to the interconnection charge. FairPoint unsuccessfully moved for reconsideration of both orders, and this appeal followed. Finding no error, the Supreme Court affirmed. View "Appeal of Northern New England Telephone Operations, LLC" on Justia Law

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The Conference Group challenged the Commission's decision that the audio bridging services provided by InterCall were properly classified as "telecommunications" under the Communications Act of 1934, as amended, and thereby obligated it and "similarly situated" providers to contribute directly to the Universal Service Fund (USF), 47 U.S.C. 254(d). The court concluded that the Conference Group had standing to challenge the Commission's decision as procedurally unlawful rulemaking; on the merits, the Commission's decision involved a statutory interpretation that could be rendered in the form of an adjudication, not only in a rulemaking; because the decision was an adjudication and The Conference Group was not a party, it lacked standing to challenge the merits of the adjudication; and, therefore, the court dismissed in part and denied in part The Conference Group's petition for review. View "The Conference Group, LLC v. FCC, et al." on Justia Law