The FCC had a more difficult time in court Friday than some expected (see 1804190056) in defending its change of the UHF discount so that stations in that part of the TV band could have twice the concentrated ownership as those lower down the dial. Every member of a three-judge panel took issue with the FCC’s lack of justification for restoring the UHF discount.
The United Church of Christ yanked an almost 10-year-old request that the FCC change its calculation for leasing a full channel from a cable operator after the Office of Management and Budget back then disapproved information collection requirements associated with that year's leased access order. "Due to the passage of time, UCC has agreed to withdraw its request," said an order of dismissal Thursday signed by Media Bureau Chief Michelle Carey. "We are dismissing the request without prejudice." It was a minor matter that was part of a larger issue that since has been resolved, emailed Georgetown Institute for Public Representation lawyer Andrew Schwartzman. His now-defunct Media Access Project made the request on Aug. 26, 2008, for UCC.
The FCC is expected to have an edge in Friday’s oral argument before the U.S. Court of Appeals for the D.C. Circuit against Free Press and other groups on the agency’s restoration of the UHF discount, but not as big of one as usual, attorneys and industry officials said in interviews. Courts tend to defer to agency decisions, but that dynamic is complicated by this decision being a direct reversal of a 2016 FCC decision to strike down the discount, said Fletcher Heald appellate attorney Harry Cole, who isn't connected to the case. “The FCC has broad discretion,” Cole said, but such a 180-degree turn allows opponents to paint it as a decision motivated by politics rather than the measured work of an expert agency. If the D.C. Circuit isn’t sure what argument is better, it will defer to the commission, said an experienced telecom litigator.
Mignon Clyburn's April meeting will be her last as a commissioner, she announced (see 1804170021) at the end of Tuesday’s FCC meeting. Clyburn told us she doesn’t have a firm date for when she will leave the job she has held since August 2009, but it will be before the FCC next meets May 10. As acting chairwoman for part of 2013, Clyburn was the first woman to head the agency, noted Chairman Ajit Pai, who praised her as did all other members. “You can’t ask for a better opportunity,” she said of her time on the FCC. “It’s time to start a new chapter.” There was no word Tuesday on nomination of Enforcement Bureau Assistant Chief Geoffrey Starks, Clyburn’s presumptive successor (see 1803200055).
Mignon Clyburn's April meeting will be her last as a commissioner, she announced (see 1804170021) at the end of Tuesday’s FCC meeting. Clyburn told us she doesn’t have a firm date for when she will leave the job she has held since August 2009, but it will be before the FCC next meets May 10. As acting chairwoman for part of 2013, Clyburn was the first woman to head the agency, noted Chairman Ajit Pai, who praised her as did all other members. “You can’t ask for a better opportunity,” she said of her time on the FCC. “It’s time to start a new chapter.” There was no word Tuesday on nomination of Enforcement Bureau Assistant Chief Geoffrey Starks, Clyburn’s presumptive successor (see 1803200055).
Signs are growing that the Senate is likely to move quickly on confirmation for a nominee to succeed FCC Commissioner Mignon Clyburn upon her expected departure, given Republicans’ strong interest in securing a second full term for Commissioner Brendan Carr and bringing on a full FTC slate, communications lobbyists told us. Clyburn isn't expected to announce her departure date until the White House nominates her successor (see 1803290043).
Signs are growing that the Senate is likely to move quickly on confirmation for a nominee to succeed FCC Commissioner Mignon Clyburn upon her expected departure, given Republicans’ strong interest in securing a second full term for Commissioner Brendan Carr and bringing on a full FTC slate, communications lobbyists told us. Clyburn isn't expected to announce her departure date until the White House nominates her successor (see 1803290043).
The 9th U.S. Circuit Court of Appeals' transfer of net neutrality litigation to the D.C. Circuit Wednesday produced modest initial reaction among parties we queried. The 9th Circuit cited the lack of opposition in making the decision (see 1803280030). "The benefit to all parties is that the DC Circuit judges are better equipped than any other circuit to understand and manage case like this. Beyond that, as always, in the end it is a crapshoot," emailed Andrew Schwartzman, who's representing the Benton Foundation, one of the petitioners that challenged the FCC's "internet freedom" order in the D.C. Circuit. "The transfer is not surprising, given the DC Circuit’s past experience in these cases specifically and with FCC-related rule challenges generally," emailed Enrique Armijo, academic dean and associate professor of Elon University School of Law. "I think D.C. Circuit makes the most sense, and hopefully we can get a quick decision," emailed Doug Brake, Information Technology and Innovation Foundation telecom policy director. "The big lines of this doctrine are already pretty clear: the FCC gets wide deference to interpret this ambiguous statute. It’s a little disappointing we can’t really expect any bombshells out of this case -- I wish we could fast-forward to serious discussions on [Capitol] Hill." Both Armijo and Brake had predicted a transfer, while some said they believed a transfer would speed court review but doubted it would tilt the outcome either way (see 1803090051). Others didn't comment Wednesday, including the FCC and counsel for Mozilla, which sought the transfer and is the lead petitioner in the D.C. Circuit. Meanwhile, comments are due April 27 at the Office of Management and Budget and FCC on broadband ISP disclosure duties under the Paperwork Reduction Act, said a notice in the Federal Register Wednesday. The "internet freedom" order's repeal of Title II net neutrality regulation under the Communications Act won't take effect until after ISP information-collection requirements in a transparency rule are finalized. Once OMB approves, the FCC will publish a final FR notice on the effective date of the order.
The 9th U.S. Circuit Court of Appeals' transfer of net neutrality litigation to the D.C. Circuit Wednesday produced modest initial reaction among parties we queried. The 9th Circuit cited the lack of opposition in making the decision (see 1803280030). "The benefit to all parties is that the DC Circuit judges are better equipped than any other circuit to understand and manage case like this. Beyond that, as always, in the end it is a crapshoot," emailed Andrew Schwartzman, who's representing the Benton Foundation, one of the petitioners that challenged the FCC's "internet freedom" order in the D.C. Circuit. "The transfer is not surprising, given the DC Circuit’s past experience in these cases specifically and with FCC-related rule challenges generally," emailed Enrique Armijo, academic dean and associate professor of Elon University School of Law. "I think D.C. Circuit makes the most sense, and hopefully we can get a quick decision," emailed Doug Brake, Information Technology and Innovation Foundation telecom policy director. "The big lines of this doctrine are already pretty clear: the FCC gets wide deference to interpret this ambiguous statute. It’s a little disappointing we can’t really expect any bombshells out of this case -- I wish we could fast-forward to serious discussions on [Capitol] Hill." Both Armijo and Brake had predicted a transfer, while some said they believed a transfer would speed court review but doubted it would tilt the outcome either way (see 1803090051). Others didn't comment Wednesday, including the FCC and counsel for Mozilla, which sought the transfer and is the lead petitioner in the D.C. Circuit. Meanwhile, comments are due April 27 at the Office of Management and Budget and FCC on broadband ISP disclosure duties under the Paperwork Reduction Act, said a notice in the Federal Register Wednesday. The "internet freedom" order's repeal of Title II net neutrality regulation under the Communications Act won't take effect until after ISP information-collection requirements in a transparency rule are finalized. Once OMB approves, the FCC will publish a final FR notice on the effective date of the order.
The 9th U.S. Circuit Court of Appeals may be asked to transfer net neutrality litigation to the D.C. Circuit, observers told us Friday. Parties to the case aren't saying what they'll do; some cautioned against speculation; and others questioned whether it would make that much difference to the outcome. But several agreed with previous suggestions the 9th Circuit generally is slower than the D.C. Circuit in deciding cases. The FCC declined to comment.