Supreme Court prospect Brett Kavanaugh has made a mark in communications law in 12 years as a U.S. Court of Appeals for the D.C. Circuit judge. In a dissent from a ruling affirming the FCC's 2015 net neutrality order, he argued the regulation lacked clear congressional authorization and violated the First Amendment. The agency shouldn't get Chevron deference on "major" rules and broadband ISP speech rights can't be restricted absent a market power showing, he wrote. He has also found programming rules violate cable operator speech rights, upheld partial telco forbearance relief decisions and ruled on many other FCC orders, giving him far more telecom and media legal experience than any other contender to replace retiring Justice Anthony Kennedy (see 1806280018).
Supreme Court prospect Brett Kavanaugh has made a mark in communications law in 12 years as a U.S. Court of Appeals for the D.C. Circuit judge. In a dissent from a ruling affirming the FCC's 2015 net neutrality order, he argued the regulation lacked clear congressional authorization and violated the First Amendment. The agency shouldn't get Chevron deference on "major" rules and broadband ISP speech rights can't be restricted absent a market power showing, he wrote. He has also found programming rules violate cable operator speech rights, upheld partial telco forbearance relief decisions and ruled on many other FCC orders, giving him far more telecom and media legal experience than any other contender to replace retiring Justice Anthony Kennedy (see 1806280018).
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A court dispatched two cases involving FCC inmate calling service rate orders in light of litigant motions and a third commission order that was substantially overturned by the court. The U.S. Court of Appeals for the D.C. Circuit dismissed as moot challenges to a 2013 ICS order that set interim interstate rate caps, saying all parties agree the order "has been superseded by a subsequent agency order," said an order (in Pacer) of a three-judge panel Thursday in Securus Technologies v. FCC, No. 13-1280. It was referring to a 2015 order setting permanent interstate and intrastate rate limits. In Global Tel*Link v. FCC, No. 15-1461, the D.C. Circuit in June struck down much of that order, including the FCC's intrastate pricing authority, and upheld the agency's interstate pricing authority, but found the regulatory methodology "patently unreasonable" and remanded related decisions for further consideration (see 1706130047). The same panel issued a second order (in Pacer) Thursday that "summarily vacated insofar as it purports to set rate caps" a 2016 FCC reconsideration order that adjusted rate caps, noting all parties agreed they were "premised on the same legal framework and mathematical methodology that this court rejected" in Global Tel*Link. The panel remanded the rest of the recon order to the FCC for further consideration "in light of the disposition of this case" (Securus Technologies v. FCC, No. 16-1321) and the related cases.
The FCC and others asked a court not to review two inmate calling service rate orders from 2013 and 2016, after the court in June vacated and remanded key parts of a 2015 order restricting ICS rates and fees in Global Tel*Link v. FCC, No. 15-1461 (see 1706130047). The 2013 and 2016 orders have been held in abeyance by the U.S. Court of Appeals for the D.C. Circuit, which recently asked for motions on further proceedings. The commission and most other litigants said the D.C. Circuit should summarily vacate the 2016 reconsideration order being challenged in Securus v. FCC, No. 16-1321, because it relied on the same industry-averaging cost methodology vacated in GTL. They asked the court to dismiss as moot challenges to the 2013 interim interstate ICS rate order in Securus v. FCC, No. 13-1280, because it was superseded by parts of the 2015 order that weren't vacated in GTL. "Those aspects of the 2015 ICS Order not vacated by this Court in GTL are now the governing regulatory scheme for ICS unless and until revisited by the Commission in further administrative proceedings," said the joint motion (in Pacer) filed Monday by GTL, Securus, CenturyLink, Telmate, correctional facility petitioners, state and local government petitioners, the FCC and DOJ and their supporting intervenors. "That includes the 2015 ICS Order’s recodification of the interim interstate rate caps ... which, with respect to interstate calls only, remain in effect." Pay Tel Communications asked (in Pacer) asked the court to "vacate (or at least maintain the existing stay of)" the 2016 recon order's revised rate caps and remand the order to the commission.
Judges asked parties for proposals on how to deal with two inmate calling service cases on Securus Technologies' challenges to the FCC's 2013 and 2016 ICS orders, after court rulings against a 2015 ICS order. Judges David Tatel, Thomas Griffith and Cornelia Pillard of the U.S. Court of Appeals for the D.C. Circuit issued two brief orders (here and here in Pacer) Friday asking litigants to file motions within 30 days to govern the two pending cases, Securus v. FCC, Nos. 13-1280 and 16-1321. They noted the D.C. Circuit's recent decision not to rehear en banc (see 1709270009) another panel's June ruling reversing key parts of the commission's 2015 ICS order, including intrastate rate caps, in Global Tel*Link v. FCC, No. 15-1461 (see 1706130047). The 2013 order set interim interstate rate caps (see 1308120049). The 2016 reconsideration order raised interstate and intrastate rate caps from the 2015 order to account for correctional facility costs but without restricting ICS provider site-commission payments to authorities (see 1608040037).
A federal court denied an appeal of a three-judge panel's inmate calling service ruling that reversed key FCC pricing decisions in a 2015 order, including intrastate rate caps (see 1707280058 and 1706130047). No judge of the U.S. Court of Appeals for the D.C. Circuit asked for a vote on Wright Petitioners' request for en banc review, said a brief order Tuesday in Global Tel*Link v. FCC, No. 15-1461. "This was not unexpected, but it is nonetheless very disappointing," said petitioners' counsel Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor, Wednesday.
The D.C. Circuit U.S. Court of Appeals shouldn’t rehear en banc a three-judge panel’s ruling that reversed key FCC 2015 inmate calling service pricing decisions, including intrastate rate caps, said the FCC, states and ICS providers. Wright Petitioners, representing inmate families, asked in July for en banc review, saying that the ruling conflicted with Chevron principles and decisions of the Supreme Court and D.C. Circuit (see 1707280058). The petitioners’ request “depends on a misreading of the majority opinion,” the FCC said in a response (in Pacer) last week in Global Tel*Link v. FCC, No. 15-1461. “And the remaining grounds they advance for en banc rehearing fall far short of meeting the stringent standard for that relief.” The court’s Aug. 4 clarification of the majority opinion “makes clear that this case presents no substantial issue regarding application of Chevron,” and petitioners failed to identify any conflict between the panel decision and the court’s prior decisions, ICS providers CenturyLink, Global Tel*Link, Pay Tel, Securus and Telmate said in a joint response (in Pacer). Courts should sparingly grant en banc hearings, and the petitioners failed to provide a compelling argument, a group of state and local governments said in another response (in Pacer). “The Order is unprecedented; the decision vacating it does not conflict with precedent,” they said. “Rehearing is not warranted in this case.”
FCC Chairman Ajit Pai appears free to consider issues affecting Securus and inmate calling services in general, despite allegations he has a conflict of interest stemming from his past legal work for the ICS provider, ethics specialists and former commissioners told us. They noted Pai is more than five years removed from his Securus representation, and government recusal requirements last only one to two years. But two government watchdog advocates suggested Pai hold himself to a higher standard to avoid any appearance of a conflict.
The Alabama Public Service Commission lacks authority to revise price caps on inmate calling service single-call usage fees, Global Tel*Link commented last week in docket 15957. The PSC may vote Sept. 12 on ICS rule changes including revising the price cap so users pay for actual minutes used, rather than a $6 flat fee based on an average 12-minute call duration (see 1708150047). “The Commission’s authority over ICS providers is limited to their utility ‘rates and charges’ and their ‘public duties,’" GTL said. “Neither the ancillary service fee caps nor the single payment call rule relate to charges for ‘utility’ services. These charges relate to financial services or billing and collection arrangements by which ICS customers will choose to pay or be billed for services.” The PSC has no jurisdiction over financial services or billing and collecting, the company said.