Dissenting to a denial of a petition for writ of certiorari to the 9th Circuit U.S. Court of Appeals Monday, a Supreme Court Justice Clarence Thomas suggested an earlier Brand X ruling upholding an FCC decision to keep cable modem service unregulated may be unconstitutional. "Although I authored Brand X, it is never too late" to surrender former views to a better-considered position, Thomas said. He added Brand X appears to be inconsistent with the Constitution, the Administrative Procedure Act and traditional tools of statutory interpretation. The justice was writing about an unrelated case that's not about net neutrality. "I don't see this as changing the outlook for net neutrality in the Supreme Court one way or the other," emailed Andrew Schwartzman, senior counselor for the Benton Institute for Broadband & Society. "Thomas' position on this has been expressed in the past, so what he said here doesn't change that." The FCC didn't comment. NCTA declined comment.
The National Association of Consumer Advocates and the National Consumer Law Center moved to file an amicus brief with the 11th U.S. Circuit Court of Appeals Friday to support a petition for rehearing en banc requested by the plaintiff in Melanie Glasser v. Hilton Grand Vacations Co., case 18-14499-J, in Pacer. "This case deals with the question whether the words 'store or produce' in the Telephone Consumer Protection Act's definition of 'automatic telephone dialing system' ... includes systems that store telephone numbers to be called using a random or sequential number generator even if the system does not also produce such numbers using a random or sequential number generator." The movants said they want the court to recognize their unique prospective as consumer advocates with a history of commenting on robocall issues "that can help the court beyond the help that the lawyers for the parties are able to provide."
The FCC mostly got a win in the U.S. Court of Appeals for the D.C. Circuit on a 2013 FCC decision to set a $1.56 billion nationwide aggregate reserve price in the 2014 auction of H-block spectrum. NTCH urged the court to vacate Auction 96. Instead, the court ordered the FCC to consider the carrier’s petition for review of the grant of waivers to Dish Network. Oral argument was Oct. 8 (see 1910080050). In December 2013, the FCC granted Dish the relief it sought to decide on the operations of its AWS-4 spectrum, but the waiver was conditioned on Dish’s bid of nearly $1.6 billion in the H-block auction the next month. Judges Merrick Garland, David Tatel and Thomas Griffith issued a joint opinion. “We deny NTCH’s petitions for review of both the initial order modifying Dish’s AWS-4 licenses and the order setting the Auction 96 procedures,” they said: “Because the Commission wrongly dismissed NTCH’s application for review of the Bureau’s grant of the waivers,” the court vacated the commission order, remanding the claims. The FCC was wrong to dismiss NTCH’s application for review because of a lack of standing, the court said: “Because the Commission never reached the merits of NTCH’s challenge to the waiver, neither shall we. Having concluded that the Commission erred in its threshold analysis, we ‘remand to the agency for additional investigation or explanation.’” NTCH is weighing its options, said its lawyer Donald Evans of Fletcher Heald. “While we are pleased about the reversal on the waiver part of the case, we were surprised and disappointed that the Court did not address the merits of the ‘cash for waivers’ deal that the FCC made with DISH,” Evans emailed. The court defended the FCC’s overall decisions, challenged by NTCH. The court has said in the past it will “accept the Commission’s ‘technical judgment[s]’ when supported ‘with even a modicum of reasoned analysis, absent highly persuasive evidence to the contrary,’” the judges said. “This deferential standard of review makes NTCH’s task a daunting one.” The FCC chose “to modify Dish’s licenses largely because of the ‘technical judgment’ … that same-band, separate-operator sharing of the spectrum would be impractical.” The court said it couldn’t find, as NTCH asked, that the FCC’s failure to consider stripping Dish of its satellite rights was unreasonable. “Boiled down, NTCH claims that the Commission should have expanded the rulemaking’s scope to consider NTCH’s preferred resolution of the problem,” the court said: “But the Commission need not ‘resolve massive problems in one fell regulatory swoop.’ … Here, the Commission reasonably limited the rulemaking proceeding to proposals to expand terrestrial uses of the AWS-4 Band.”
AT&T Southwest Mobility workers authorized a strike with 98 percent in support, Communications Workers of America said Thursday. CWA’s contract with AT&T covering about 8,000 workers in Arkansas, Kansas, Missouri, Oklahoma and Texas expires Friday. “We have made progress toward a fair contract over the last few days, but several critical issues remain unresolved,” said Jason Vellmer, leading CWA’s bargaining team. The union wants “a new contract that protects our healthcare, improves wages, and keeps family-supporting, union jobs in the region,” he said. AT&T is confident it can reach agreement, said a spokesperson. "A strike vote is a routine" step, he emailed. "We’re continuing to bargain with the union, and we’re committed to reaching a fair agreement that will allow us to continue to provide solid union-represented jobs with competitive wages and benefits."
FCC Commissioner Geoffrey Starks updated his Puerto Rico field hearing release Thursday to announce the witnesses speaking at Friday's hearing (see 2002200021). Some stakeholders said the short time between the hearing and its announcement last week could keep some from attending (see 2002130056). According to the update, the hearing will include testimony from Communications Workers of America staff representative Luis Benitez-Burgos, Information Technology Disaster Resource Center Chief of Operations for Puerto Rico Darrick Kouns, Puerto Rico Hospital Association President Jaime Pla-Cortes, Puerto Rico Telecommunications Regulatory Board President Sandra Torres Lopez, WorldNet CEO David Bogaty, WKAQ-TV San Juan Station Manager Jose Cancela, Liberty Puerto Rico CEO Naji Khoury and Claro Puerto Rico General Counsel Francisco Silva.
The FCC plans a March 26 forum on 5G virtualized radio access networks, Chairman Ajit Pai said Thursday. “At the forum, experts at the forefront of the development and deployment of interoperable, standards-based, virtualized radio access networks will join Chairman Pai and other Commission staff to discuss this paradigm-shifting approach to 5G network deployment,” the FCC said. Pai said the FCC is focused on 5G: “One way to advance this priority is through the development and deployment of more secure, cost-effective 5G network components, Virtualized radio access networks could help us do that.” Commissioner Jessica Rosenworcel wants more focus on the security benefits of network virtualization (see 1910230060). “Glad the FCC is following my lead,” Rosenworcel tweeted: “Next up: let's have the FCC set up testbeds to accelerate this technology in the United States.” The forum starts at 9:30 a.m. in the Commission Meeting Room.
The National Association of Tower Erectors unveiled a new logo Wednesday and said it wants to be called “NATE: The Communications Infrastructure Contractors Association,” in an announcement at the group’s annual meeting in Raleigh. The new logo “is designed to represent technology, communication, connectivity and the future,” the group said.
The FCC announced the membership for the working groups of the Advisory Committee on Diversity and Digital Empowerment, in a public notice Wednesday. Members include US Bank Senior Vice President-Media and Communications Garret Komjathy on the Access to Capital working group, D.C. Public Service Commission Policy Adviser Felicia West on the Digital Empowerment and Inclusion working group, and ALLvanza CEO Rosa Mendoza Davila on the Diversity in the Tech Sector Group. The ACDDE had its first meeting under its new charter in October (see 1910300046).
FCC Chairman Ajit Pai has accomplished a lot, and that's often ignored by the news media, American Enterprise Institute Visiting Scholar Roslyn Layton blogged Wednesday. “Tech policy media is overwhelming focused on politicized issues, with little to no accurate coverage on the substance of FCC’s activities,” she said. Layton noted FCC work to curb robocalls, deploy broadband in rural areas and fight the threat of Chinese network equipment makers. “The FCC is ushering in the 5G era by enabling record-breaking capital investments in long-lived assets, such as fiber optic cables, small cells, and spectrum licenses,” she said: “As the latest FCC Broadband Deployment Report notes, over 450,000 miles of fiber have been deployed in 2019 alone, enough to encircle the Earth over 18 times.”
The FCC Wireline Bureau will take comments through March 30, replies until April 29, on several issues remanded to the agency after the U.S. Court of Appeals for the D.C. Circuit upheld most of the commission's net neutrality order in Mozilla v. FCC (see 1910010018) and later denied petitions for a rehearing (see 2002180054), said a public notice in dockets 17-108, 17-287 and 11-42 Wednesday. The bureau is refreshing the record on how the FCC's Restoring Internet Freedom order could affect public safety when broadband is classified as a Title I information service; how it affects pole attachment regulation; and what authority the agency has to direct Lifeline USF support to eligible telecommunications carriers (see 1910290002). "The FCC got it wrong when it repealed net neutrality," Commissioner Jessica Rosenworcel said in a statement Wednesday. That's why the courts sent back key parts of the order, she said, urging the American public to use this comments period as another opportunity to weigh in on net neutrality: "It's time to make noise." Public Knowledge is also encouraging the public to "speak out about the importance of a free and open internet." Senior Policy Counsel Jenna Leventoff also questioned the agency's decision to combine the three separate issues into a single "bureau-level public notice" and provide only 40 days for public comment. Free Press Research Director Derek Turner said FCC Chairman Ajit Pai's "zealous efforts to remove broadband providers from any obligations to protect internet users defies what Congress clearly intended for these critical communications services. Without Title II safeguards, we face several potentially harmful consequences to public safety and universal service." FP vowed to continue to fight to restore net neutrality protections after Pai's tenure with the FCC ends. “Since the Restoring Internet Freedom Order was adopted, broadband speeds have increased substantially, fiber deployment has hit an all-time high, and the Internet has remained free and open," an FCC spokesperson emailed. "The attempts by some to engage in the same old tired fearmongering on this issue are likely to ring hollow to more and more Americans.”