Consumers’ Research filed another legal challenge to the FCC’s Universal Service Fund, this time against the Q1 2023 contribution factor, in the 6th U.S. Circuit Court of Appeals. The group has another challenge in the 6th Circuit against the Q4 2021 contribution factor, plus a case in the 5th Circuit against the Q1 2022 factor, and a challenge in the 11th against the Q4 2022 factor. Oral argument was held in the 5th Circuit case earlier this month (see 2212060070), and the FCC filed a response brief in the 11th Circuit last week (see 2212230007). The latest filing takes a similar tack to Consumers’ Research’s other cases, arguing that the USF contribution factor is an unconstitutional tax because it's imposed by the FCC rather than Congress, and that the FCC has violated the Administrative Procedure Act. The group is likely challenging the contribution factor in the same circuit as an ongoing challenge to provide a backstop if the other 6th Circuit case is dismissed or rejected for narrow procedural reasons, said Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman, who has filed in support of the FCC in other Consumers’ Research cases. Consumers’ Research didn’t comment. The new case likely won’t be briefed or move forward while the other 6th Circuit one is ongoing, Schwartzman said.
Consumers’ Research's challenges to several of the FCC’s Universal Service Fund contribution factors may be an attempt to force a decision by the Supreme Court on the nondelegation doctrine, said academics and attorneys in interviews. Some said the group brought the exact same argument in multiple courts of appeals to forum shop and engineer a circuit split.
Industry officials and broadband experts said the FCC will likely get many challenges to its broadband availability maps and broadband serviceable location fabric (see 2211100072). Most challenges will likely come from providers rather than consumers, we’re told.
Standard General founder Soo Kim said filings from the Communications Workers of America’s NewsGuild sector’s attorneys David Goodfriend and Andrew Schwartzman and CEO Jon Schleuss opposing the Standard/Tegna deal were "sexist and racially charged ad hominem attacks.” A Standard General news release Monday highlighted statements in NewsGuild filings warning of “anonymous foreign investment” in newsrooms and questioning whether the deal increases ownership diversity since Kim “is not barred by his race from becoming a successful entrepreneur” and Standard CEO Deb McDermott “is not barred by her gender to be selected to run a large corporation.” “To be clear, I am ethnically Korean. And I am a proud American citizen,” said Kim in the release. “These three men are attempting to define what constitutes a minority or what is the right kind of diversity -- this is offensive and inappropriate.” It's “beyond the pale for Schleuss, Goodfriend, and Schwartzman to use my ethnicity to postulate theories of my being an agent of foreign ownership,” Kim said, noting he already owns multiple radio and TV stations. “Whatever we have to say will be in what we file with the Commission,” emailed Schwartzman, who's also senior counselor at the Benton Institute for Broadband & Society, when asked for comment. Standard is “confident” the deal complies with all regulations, the release said. “We have submitted 3 million documents and over 12 million pages of records and have nothing but respect for the regulatory process,” the release said. “We are confident that the public statements from these three men will be seen for what they are -- sentiments that have no place in America today.”
5G for 12 GHz Coalition leaders told reporters Thursday they still expect the FCC to act soon on changing the rules for the 12.2-12.7 band to allow two-way use for 5G. The officials hope the FCC will also soon approve a grant of special temporary authority allowing real-world tests. They noted the coalition now includes 38 companies and organizations.
The FCC “reopened” for in-person meetings in June, but the agency hasn’t seen a wholesale return to them, and most meetings between staff and industry remain virtual, as they have been since the start of the COVID-19 pandemic in March 2020, based on a review of ex parte filings and interviews with lawyers and FCC officials. Some expect more in-person meetings starting after Labor Day, depending on what happens on COVID infection rates during August.
Andrew Schwartzman is senior counselor at the Benton Institute for Broadband & Society (see 2207120054).
The FCC shouldn’t grant an extension request for reply filings in the Standard/Tegna proceeding, said Standard General, Tegna and Cox Media Group in a joint filing posted Tuesday. The request, from the NewsGuild and National Association of Broadcast Employees and Technicians sectors of the Communications Workers of America, plus Common Cause and the United Church of Christ Media Justice Ministry, is for a two-week extension. A 30-day extension was granted earlier in the proceeding. “The Movants’ serial extension requests make clear that they merely seek to delay this proceeding,” said the broadcasters. Granting the motion would bring the length of time between the application filing and the reply deadline to “nearly double the historical average,” said the broadcasters. The anti-consolidation groups seek the extension due to the complexity of the matter, the difficulty of accessing protected information, the short number of business days in the filing period, and “unavoidable medical treatments” required by Andrew Schwartzman, counsel for the two unions. Schwartzman is also senior counselor at the Benton Institute for Broadband & Society. None of those reasons is acceptable grounds for further delay, the broadcasters said. “The Motion itself is indicative that Petitioners are pooling resources in this proceeding,” said Tegna, Standard General, and CMG. “The requested extension is therefore not justified by a single lawyer’s need for an out-patient medical procedure.”
In what's viewed as a major decision by the Supreme Court Thursday, justices didn’t overrule the Chevron doctrine but appeared to further clamp down on the ability of agencies like the FCC to regulate, absent clear direction from Congress. The opinion came in an environmental case, West Virginia v. EPA. Legal experts said the 6-3 decision likely presages that courts would overturn an FCC decision to classify broadband under Title II of the Communications Act.
Apollo Global Management and its subsidiary Cox Media Group’s noncontrolling shares in the company created by Standard’s $8.6 billion buy of Tegna wouldn’t give them influence over it or on retransmission consent negotiations, said a response from all four companies to the FCC Media Bureau, posted Tuesday. “The companies will continue to compete directly and vigorously in the handful of markets where both own stations,” said the response filing.