The FCC voted 4-1 to cancel a 2016 proposal to fine AT&T $106,425 for E-rate violations because the notice of apparent liability was issued after the one year statute of limitations on the violations, said an order in Wednesday’s Daily Digest (see 1608260037). The original NAL argued AT&T’s failure to charge two Florida school districts the lowest corresponding price was a continuing violation of the rules. Commissioner Jessica Rosenworcel dissented, saying she respected the procedural argument but believes there were merits to the previous FCC’s approach. The 2016 FCC’s stance that some violations should be treated as continuing would lead to more accountability for USF carriers, she said. She also said the date of violations should be pegged to USF disbursements. Commissioner Geoffrey Starks voted “concur” but raised similar concerns: “The Commission should consider how we can best promote timely detection of violations to avoid future problems with the statute of limitations.” Commissioner Mike O’Rielly said the original NAL would have failed on the merits if it hadn’t been canceled. “The previous Commission’s attempt to evade the applicable statute of limitations through its continuing violation theory was offensive to the rule of law and must be thoroughly rejected,” he said. “This NAL was dismissed because it was procedurally flawed," emailed an AT&T spokesperson. "But it was also substantively flawed, and egregiously so, as its core factual and legal claims were simply wrong.”
The FCC activated the disaster information reporting system and issued three public notices Wednesday on emergency communication procedures and contacting the agency in response to Monday’s “Midwest Derecho” in Iowa. Communications licensees in 24 Iowa counties are requested to report at 10 a.m. Thursday and every day after that until DIRS is deactivated, said the DIRS PN. The FCC “will be available to address emergency communications needs twenty-four hours a day throughout the weekend,” said a second notice, and the third provided bureau contact information for entities seeking emergency special temporary authority and other assistance to maintain or recover communications affected by the storm.
The next FCC Consumer Advisory Committee meeting will be held remotely at 10:30 a.m. EDT on Sept. 25, said a public notice Tuesday.
A DOJ report on ways to update the Administrative Procedure Act includes proposals to require agencies to disclose the data used in the rulemaking process, revive agency hearings for rules with major impacts, and to base the amount of scrutiny a new rule is subjected to on its importance. "Modernizing the Administrative Procedures Act," released Tuesday, collected the remarks of panelists and speakers at DOJ's December workshop on the subject. The current APA leads to overly costly and burdensome regulations that may at times infringe on the Constitution, said Deputy Attorney General Jeffrey Rosen in the report’s forward. The consistent theme of the workshop was that Congress should intervene to update the rules instead of relying on the current structure of executive orders and agency rulings, Rosen said. Legislation would “promote stability by codifying procedures that, in their current form, can be undone at the stroke of a presidential pen” and “honor the separation of powers.” said Rosen. “The Justice Department, which significantly shaped the original APA, hopes that the ideas and insights discussed in the report will encourage and inform much needed action by Congress to modernize the APA,” said the DOJ release on the report.
Adam Candeub will become acting NTIA administrator, the agency announced internally Monday. Candeub joined the agency as deputy assistant secretary of commerce in April (see 2005010060). Leadership has been fluid since David Redl left in May 2019. Doug Kinkoph had most recently been acting head and now returns to run the Office of Telecommunications and Information Applications. Having someone take charge at NTIA is “sorely needed,” said R Street Institute Resident Fellow-Technology and Innovation Jeffrey Westling. He noted Candeub’s strong background with Section 230 of the Communications Decency Act, though the agency hasn’t dealt extensively with the tech liability shield. Candeub previously sought a Section 230 update, suggesting Big Tech should follow the same rules as other regulated industries. NTIA’s role in President Donald Trump’s social media executive order is largely complete (see 2007280053), as it filed its petition for rulemaking with the FCC, Westling said. Candeub is on a leave of absence from Michigan State University, where he's a professor of law and director of the Intellectual Property, Information and Communications Law Program.
Comments are due Aug. 31, replies Sept. 14 on a Further NPRM approved by FCC commissioners 5-0 in July (see 2007160051) on implementing the Secure and Trusted Communications Networks Act, says Monday's Federal Register.
Officials from DOD, the Transportation and Commerce departments and Office of the Director of National Intelligence met with FCC Wireless Bureau Associate Chief Charles Mathias and other commission staff “for a technical discussion of classified materials” about Ligado’s L-band plan, said NTIA Chief Counsel Kathy Smith in a filing posted Friday in docket 11-109. The FCC is considering petitions for reconsideration of its approval of the Ligado proposal and NTIA's request for a stay of the commission’s order (see 2005220055). Ligado opponents are continuing to lobby the FCC on the matter (see 2008060024). Other FCC participants in the Tuesday meeting included Office of Engineering and Technology Policy and Rules Division Chief Michael Ha, International Bureau Chief Engineer Robert Nelson, OET Senior Engineer Robert Pavlik and Deputy Associate General Counsel William Richardson. DOD officials included Deputy Chief Information Officer-Command Control and Communications Frederick Moorefield and Office of the Chief Information Officer Deputy Director-Spectrum Policy and Program Kenneth Turner. NTIA Office of Spectrum Management Associate Administrator Charles Cooper and OSM Spectrum Engineering and Analysis Division Chief Edward Crocella were among Commerce attendees. DOT participants included Director-Positioning, Navigation and Timing and Spectrum Management Karen Van Dyke. From ODNI: Strategic Capabilities Team Chief James Diffell.
FCC rules for the C-band auction had no substantial changes from the draft public notice, based on our side-by-side comparison. Commissioners approved the notice Thursday, with partial dissents by Democrats (see 2008060069). It was posted Friday. The auction starts Dec. 8. Officials also say it had remained unchanged.
The U.S. Court of Appeals for the D.C. Circuit affirmed Friday a lower court’s dismissal of Lukas LaFuria lawyer Russell Lukas’ lawsuit against the FCC over a Freedom of Information Act request (see 2004030027). Lukas sued in 2019 after a FOIA request netted most of a Windstream filing with Universal Service Administrative Co., not a redacted exhibit. U.S. District Judge Royce Lamberth ruled (in Pacer) in March in favor of FCC motions to dismiss. “The district court granted the FCC summary judgment on this claim, concluding that Lukas failed to overcome the presumption of good faith that attached to the FCC’s declaration concerning its invocation of” FOIA Exemption 4, the D.C. Circuit said in a summary ruling the FCC posted. “Lukas does not challenge this conclusion. He instead contends that the district court was required first to answer questions he posed: whether USAC is an agency for FOIA purposes and whether the records he sought were agency records. If they are, that leaves us with the district court’s unchallenged conclusion that Lukas failed to overcome the presumption of good faith. And if they are not, Lukas has pleaded himself out of court -- he would then not be entitled to seek these documents at all under FOIA.” The FCC and Lukas didn’t comment.
A lower court "got it just right" in its interpretation of federal statute allowing the federal judiciary to charge reasonable Pacer fees, a U.S. Court of Appeals for the Federal Circuit panel ordered Thursday, rejecting interlocutory cross-appeals by plaintiff-appellants National Veterans Legal Services Program, National Consumer Law Center and Alliance for Justice and by DOJ. The ruling (docket 19-1081) by Judges Todd Hughes, Alan Lourie and Raymond Clevenger, penned by Hughes, rejected the government's argument for vacating the lower court's summary judgment order because of a lack of jurisdiction under the Little Tucker Act. And it rejected both sides' read of statutory limits on Pacer fees and concurred with the lower court interpretation that the Pacer fees are limited to the amount needed to cover expenses incurred in services providing public access to federal court electronic docketing information. It remanded the case to U.S. District Court for the District of Columbia. Counsel for the plaintiff-appellants didn't comment. Oral argument was in February (see 2002030021).