Paul Gluckman

The FCC has an “affirmative legal obligation” under Sections 552 and 553 of the Administrative Procedure Act “to make its proposed and final rules readily available to the public without charge,” despite the process known as incorporation by reference (IBR), said iFixit, Public Resource and Make Community in their reply brief Tuesday (docket 23-1311) at the U.S. Court of Appeals for the D.C. Circuit.

The FCC’s Oct. 25 declaratory ruling authorizing E-rate funding for Wi-Fi on school buses (see 2312200040) was simply the commission’s response to requests to add to the list of services eligible for support under the E-rate program, the FCC’s 5th U.S. Circuit Appeals Court appellee brief said Monday (docket 23-60641) in support of the ruling.

Utah Attorney General Sean Reyes (R) is seeking the dismissal of count VI of NetChoice’s 11-count complaint that argues Section 230 of the Communications Decency Act (see 2405060006) preempts the state’s Minor Protection in Social Media Act, a motion said Friday (docket 2:23-cv-00911) in U.S. District Court for Utah in Salt Lake City. Katherine Hass, director of Utah’s Division of Consumer Protection, joined Reyes in the motion.

The FCC’s updated data breach notification rule “encapsulates the wrong way for the administrative state to approach rulemaking,” TechFreedom’s 6th U.S. Circuit Appeals Court amicus brief said Thursday in support of the five petitioners seeking to invalidate the rule as contrary to law (see 2402210026).

The costs of complying with the FCC’s updated data breach notification rule “detract from the core work” of five trade associations' small-business members “to connect existing and new customers in hard-to-serve areas and close the digital divide,” said those trade groups in an amicus brief Wednesday in the 6th U.S. Circuit Appeals Court. Joining the brief were ACA Connects, the Competitive Carriers Association, NTCA, the Wireless ISP Association and WTA.

The FCC’s updated data breach notification rule, adopted Dec. 13, released Dec. 21 and published in the Federal Register Feb. 12, is a “brazen effort to claim regulatory authority” that Congress declined to confer under the Communications Act, but also “specifically rejected” under the Congressional Review Act (CRA), said the consolidated opening brief Wednesday in the 6th U.S. Circuit Appeals Court of five petitioners that seek to invalidate the rule (see 2402210026).

Petitioners iFixit, Public Resource and Make Community “seek to dramatically rewrite federal law and agency rules by destroying the copyright” to the standards development organizations’ standards, said 17 SDOs in an amicus brief Tuesday (docket 23-1311) in the U.S. Appeals Court for the D.C. Circuit. The brief is in support of the FCC. Petitioners allege that the FCC violated the Administrative Procedure Act when it amended rules incorporating four new equipment testing standards, and did so without the proper notice and comment protocol (see 2403280002). Using a procedure called “incorporation by reference,” they allege the commission informed the public that copies of the rules were available at its headquarters but didn't say that the rules could be read but not copied. The NPRM also said that copies of the proposed rules were available from the private SDOs that originally published them, the petitioners say. But they allege that these too couldn’t be copied and that they were available only after making a “substantial payment” to the sponsoring SDO. The petitioners ask that the D.C. Circuit compel agencies such as the FCC to post a copy of the SDO’s standard on the agency’s website, “where the electronic copy may be copied, downloaded, and further distributed without limitation,” the amicus brief said. According to the petitioners, this is necessary whenever an agency proposes to incorporate by reference such a standard in a final rule or regulation. But the result would be to make the SDOs’ works, “which indisputably are protected by copyright, available for mass infringement,” said the amicus brief. This would undermine the SDOs’ ability “to fund the creation of these works that yield enormous public benefits,” it said. Joining in the amicus brief were the American National Standards Institute, CTA, IEEE and the Telecommunications Industry Association. Consistent with their public-service missions and nonprofit status, SDOs make standards “easily accessible to the public for free, read-only viewing online,” said the amicus brief. Under the petitioners’ demands, the standards would be posted to an agency’s website “without regard to the SDO’s consent and without any remuneration to the SDO,” the amicus brief alleges. That argument is “contrary to federal law,” it said. The petitioners’ argument, if accepted, also “would undermine the infrastructure of U.S. innovation and the incentive system that are essential to our market-driven economy,” it said.

Americans “detest” calls they didn’t ask for, but the Insurance Marketing Coalition’s challenge of the FCC’s Dec. 18 order implementing rules under the Telephone Consumer Protection Act to target and eliminate illegal robotexts (see 2312220059) “is not a case about unsolicited calls,” according to the coalition’s opening brief Wednesday (docket 24-10277) in the 11th U.S. Circuit Appeals Court.

With the federal ban on TikTok, Congress has taken the "unprecedented" step of enacting a law that “bars every American from participating in a unique online community with more than 1 billion people worldwide,” TikTok and ByteDance said Tuesday in their petition for review (docket 24-1113) in the U.S. Appeals Court for the D.C. Circuit to invalidate the ban.

Twenty Republican attorneys general support the 20 industry petitioners asking the 8th U.S. Circuit Court of Appeals to vacate the FCC’s digital discrimination order on grounds it exceeds agency authority and lacks clear congressional intent (see 2404230032). The AGs made their argument in an amicus brief Thursday (docket 24-1179).