Courts will likely rule that many FCC enforcement actions trigger the Seventh Amendment right to a jury trial in the wake of the U.S. Supreme Court’s SEC v. Jarkesy decision, said DLA Piper partner and former FCC Deputy General Counsel Peter Karanjia in a white paper posted on the law firm's website. In articles, former FCC General Counsels Chris Wright (see 2407170033) and Tom Johnson (see 2405030066) have also said the ruling has ramifications for FCC enforcement. “Jarkesy is a game-changer for the FCC (as well as other administrative agencies), and the FCC’s Enforcement Bureau will not be able to continue with ‘business as usual,’” Karanjia wrote. Arguments that the FCC’s enforcement proceedings already satisfy the Seventh Amendment because targets can decline to pay their fines, triggering a DOJ collection trial, are unlikely to satisfy the courts, Karanjia wrote. “Absent reform, the FCC also faces litigation risk that courts will interpret Jarkesy to bar virtually any FCC enforcement action that seeks civil penalties.”

The FCC Public Safety Bureau's report on the Feb. 22 nationwide outage of AT&T’s wireless network (see 2403040062) found procedural mistakes by the carrier. Released Monday, the report said the Enforcement Bureau could impose sanctions. Based on information from AT&T, the report said “all voice and 5G data services for all users of AT&T Mobility were unavailable as a result of the outage, affecting more than 125 million registered devices, blocking more than 92 million voice calls, and preventing more than 25,000 calls” to 911. The direct cause was “an error by an employee who misconfigured a single network element, ultimately causing the AT&T Mobility network to respond by entering Protection Mode and disconnecting all wireless devices,” the bureau said: “Adequate peer review should have prevented the network change from being approved, and, in turn, from being loaded onto the network. This peer review did not take place.” The report cited a lack of post-installation testing, inadequate lab testing and “insufficient safeguards and controls” on AT&T's part, as well as insufficient procedures for mitigating problems. It noted the company has “taken numerous steps to prevent a reoccurrence.” For instance, within two days of the outage, “AT&T implemented additional technical controls in its network,” the report found: “This included scanning the network for any network elements lacking the controls that would have prevented the outage, and promptly putting those controls in place. AT&T has engaged in ongoing forensic work and implemented additional enhancements to promote network robustness and resilience.” AT&T has "implemented changes to prevent what happened in February from occurring again," a spokesperson emailed: "We fell short of the standards that we hold ourselves to, and we regret that we failed to meet the expectations of our customers and the public safety community.”

The FCC appeared to make only limited changes to an NPRM proposing industry-wide handset unlocking rules that commissioners approved 5-0 Thursday. The agency posted the NPRM Friday. The biggest change came in a paragraph on exceptions to the 60-day locking period that Commissioner Brendan Carr requested, as indicated Thursday (see 2407180037). “Should the rule permit any other exceptions to deter fraud including instances where individuals or groups illegally obtain devices and resell them to the public (i.e. handset trafficking)?” the notice now says: “For example, should lost or stolen phones also fall under an exception to the 60-day unlocking requirement?” The final order also notes concerns that Tango Networks and CS Hawthorn raised (see 2407160048). Only Chairwoman Jessica Rosenworcel and Commissioners Geoffrey Starks and Anna Gomez issued written statements attached to the NPRM. Comment deadlines will be set in an upcoming Federal Register notice.

FCC Chairwoman Jessica Rosenworcel had “no comment" Thursday when reporters asked her about 16 House Democrats’ request that Inspector General Fara Damelin and federal watchdogs investigate Republican Commissioner Brendan Carr for potential ethics rules violations related to him writing the telecom chapter of the Heritage Foundation’s Project 2025 policy report (see 2407170061). During a news conference Thursday, Carr largely repeated an earlier statement that his Project 2025 writing didn’t run afoul of ethics rules. FCC ethics officials “signed off on me” writing the Project 2025 chapter “in my personal capacity, which I did,” Carr told reporters. He also pushed back against lawmakers’ claims that identifying himself as a sitting FCC commissioner violated the Hatch Act. FCC ethics officials found “you are allowed to list your current position” in a biography accompanying text written in a personal capacity “among the other sort of biographical details that would be in a bio,” Carr said: Many of the ideas included in the Project 2025 chapter come from “ideas that I’ve put forward in a lot of different contexts, including testimony and in speeches. It's pretty basic stuff,” which isn’t “that controversial.” He later declined to discuss whether he agreed with a Project 2025 proposal that the FCC exclude stations affiliated with PBS and NPR from being designated as noncommercial educational stations, saying he was speaking during the news conference in his personal capacity. That proposal is included in a CPB chapter of the Project 2025 book that Carr did not write.

Comments are due Aug. 30 on the FCC’s tentative findings for its biennial report to Congress required by the 21st Century Communications and Video Accessibility Act, a public notice (docket 10-213) listed in Wednesday’s Daily Digest said. The agency tentatively found that “accessibility of telecommunications and advanced communications services and equipment continues to improve; however, some accessibility gaps remain.” In addition, the agency found companies must improve how they provide information for those with disabilities about using their products, though a wide variety of customizable accessibility apps are increasingly available. Moreover, entities "have continued to include people with disabilities in product and service design and development,” it said. The FCC also said that "accessibility barriers persist with respect to new communications technologies, although the Commission and other groups are actively working towards addressing those barriers.” The barriers include an “inconsistent landscape of accessibility functionality” among videoconferencing platforms and voice-activated user interfaces that don’t recognize commands from those with speech disabilities, the PN said. The agency must submit final findings to Congress by Oct. 8.

The FCC should shift to a fair-notice enforcement policy or risk having the courts reverse enforcement actions in the wake of the U.S. Supreme Court’s SEC v. Jarkesy (see 2406270063) and Loper Bright Enterprises v. Raimondo (see 2406280043) decisions, former FCC General Counsel and Harris Wiltshire partner Chris Wright wrote in a post on the firm's website Wednesday. Recent FCC enforcement actions –such as an April forfeiture order against major wireless carriers over personal data (see 2404290044) -- have evaded statutory limits on fines by treating single incidents as multiple acts of rule-breaking and penalized companies for actions that weren’t explicitly prohibited under the agency’s rules, Wright wrote. “Now that Chevron has been overruled," Wright anticipates "courts will review interpretations such as that without deference.” As such, “Courts will determine what the best reading of the statute is, and the Commission’s creative interpretations of the statute to generate higher penalty amounts will flunk that test.” To avoid that, FCC should propose forfeitures only when a company has violated a clear FCC rule and limit forfeiture amounts to conform to statutory requirements, Wright argued. This would also ensure the agency “has a sound basis for any forfeiture orders that it ultimately has to defend before a jury,” as it might be required to do in the wake of the Jarkesy decision. Wright was FCC general counsel in 1999 when the Enforcement Bureau was created, and is “disappointed that the Commission’s enforcement efforts have gone so far off-track.” The FCC “should correct itself sooner rather than later to avoid protracted legal challenges and judicially crafted remedies."

Proposed FCC rules on closed caption display settings shouldn’t apply to preinstalled apps on any covered devices, said CTA in an ex parte filing Monday (see 2407150052). NCTA has argued the rules shouldn't apply to preinstalled apps on MVPD set-top boxes. “It is important that consumers have a consistent experience across covered entities with respect to pre-installed apps.” In another ex parte filing, CTA said the agency shouldn’t require that caption display settings all be previewable on the same screen at once. “It may not be possible to fit programming, sample captions, and all caption display settings on screen at once,” CTA said. “Squeezing so much information on screen at once would likely result in settings that are no longer readily accessible,” CTA said. The agency should also clarify that a long press of a button is an acceptable route to access caption settings under the rules, which would require that they be accessed using “a button, key, or icon.” “As a general matter, CTA observes that pushing a button, including long-pressing a button, is comparable to a button, key, or icon.”

FCC Commissioner Nathan Simington, reacting to Saturday's assassination attempt on former President Donald Trump, said Americans should “renounce the abuse of the vast reach of telecommunications to falsely describe political adversaries as threats to democracy, fascists, and by other false and hate-filled terms.” In a two-page statement Monday, Simington wrote that the FCC “has few or no powers to compel or limit political speech.” As such, he was making the request “not as an officer of the US government, but as a concerned citizen.” However, his remarks used the same letterhead as FCC news releases. They were released in the manner of official FCC commissioner statements. “It is no more than the truth to say that President Trump’s survival also saved the election’s legitimacy by preserving the political choices of tens of millions of Americans,” Simington wrote. "The image of President Trump, blood streaming down his face, on his feet and shaking his fist in regal defiance, became an instant classic of American history." FCC Commissioner Brendan Carr also reacted, posting on X that it's “past time for politicians that know better to stop fanning the false flames of fear.” Carr said he was “Praying for President Trump tonight and for any innocent loss of life in Butler, Pennsylvania.” The FCC's Democratic commissioners didn't release statements on the shooting.

The 6th U.S. Circuit Court of Appeals temporarily stayed the FCC's net neutrality order until Aug. 5. In an order Friday (docket 24-7000), Judges Jeffrey Sutton, Eric Clay and Stephanie Davis granted an administrative stay "to provide sufficient opportunity to consider the merits of the motion to stay" the order. The judges gave a July 19 deadline for filing supplemental briefs on the application of the U.S. Supreme Court's 2005 Brand X decision. The FCC didn't comment. "This is big," former FCC Commissioner Rob McDowell, now at Cooley, posted Friday on X. The stay decision "inherently signals the court’s determination of appellants’ likelihood of success on the merits against the FCC," he said.

The FCC World Radiocommunication Conference (WRC) Advisory Committee scheduled a second meeting for Aug. 5 where the group will consider status reports and recommendations from its informal working groups preparing for WRC-27 (see 2403210049). The FCC announced the meeting in a public notice Thursday. The in-person meeting will begin at 9:30 a.m. at the FCC.