A federal court asked the FCC, DOJ and allies to respond by Sept. 12 to appeals of a panel decision that upheld net neutrality and broadband reclassification. The agencies have a 30-page limit for their response and supporting intervenors 15 pages, said the order (in Pacer) Wednesday by the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC, No. 15-1063 and consolidated cases). Absent further order, the D.C. Circuit said it won't accept replies. Alamo Broadband, AT&T, CTIA, NCTA, the American Cable Association, USTelecom, CenturyLink and Tech Freedom and other intervenors filed petitions for the D.C. Circuit to rehear the case (see 1607290052).
Prospects look bleak if the FCC appeals a municipal broadband setback, many attorneys told us, several citing DOJ's decision not to join the commission's brief. A three-judge panel of the 6th U.S. Circuit Court of Appeals Wednesday reversed an FCC order that pre-empted two state laws blocking municipal broadband providers from expanding into nearby communities (State of Tennessee, State of North Carolina v. FCC, Nos. 15-3291/3555). One judge partially dissented but largely agreed with the majority (see 1608100049). FCC Chairman Tom Wheeler said Wednesday the agency was reviewing its options and a spokesman had no further comment Thursday.
Prospects look bleak if the FCC appeals a municipal broadband setback, many attorneys told us, several citing DOJ's decision not to join the commission's brief. A three-judge panel of the 6th U.S. Circuit Court of Appeals Wednesday reversed an FCC order that pre-empted two state laws blocking municipal broadband providers from expanding into nearby communities (State of Tennessee, State of North Carolina v. FCC, Nos. 15-3291/3555). One judge partially dissented but largely agreed with the majority (see 1608100049). FCC Chairman Tom Wheeler said Wednesday the agency was reviewing its options and a spokesman had no further comment Thursday.
The FCC voted 3-2 along party lines to approve a media ownership order Wednesday that, as expected (see 1608080051), largely resembles its 2014 NPRM, industry and agency officials told us. An spokesman confirmed the item had been voted, but details of the voting breakdown and the text of the order weren't released. FCC and industry officials told us the item was approved by all three Democratic commissioners and opposed by both Republicans, and keeps most ownership rules in place and resurrects joint sales agreement (JSA) ownership attribution rules that were vacated by the 3rd U.S. Circuit Court of Appeals.
Some eighth-floor Democrats may be open to a compromise on media ownership that would change or eliminate newspaper cross-ownership rules, and discussion of changing the draft media ownership order to reflect that means it's unlikely the order will be released Wednesday on its must-vote deadline, former FCC officials told us. The deadline was triggered by the item having received votes from all three Democratic commissioners two weeks ago, but lifting newspaper cross-ownership would be a change from the version of the item that was voted, and Chairman Tom Wheeler is expected to extend the deadline, the officials said. Rolling back newspaper/cross-ownership could pave the way for a partial approval of the media ownership order by all five commissioners, which Wheeler's office would prefer, the former FCC officials told us. An FCC spokesperson declined comment.
FCC critics face an uphill battle to convince a federal court to rehear and overturn a ruling upholding the FCC's net neutrality and broadband reclassification order, some knowledgeable sources told us Thursday. Various parties who originally challenged the order are expected to file petitions Friday for rehearing the 2-1 decision at the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC, No. 15-1063), they said. Even commission critics say the odds are against the D.C. Circuit granting rehearing, but some suggested the appellate court proceeding might improve the prospects for Supreme Court review, including on the question of Chevron deference to the agency.
FCC critics face an uphill battle to convince a federal court to rehear and overturn a ruling upholding the FCC's net neutrality and broadband reclassification order, some knowledgeable sources told us Thursday. Various parties who originally challenged the order are expected to file petitions Friday for rehearing the 2-1 decision at the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC, No. 15-1063), they said. Even commission critics say the odds are against the D.C. Circuit granting rehearing, but some suggested the appellate court proceeding might improve the prospects for Supreme Court review, including on the question of Chevron deference to the agency.
Public interest groups support the FCC plan to leave media ownership rules largely intact but are “disappointed” in the FCC's failure to study broadcast ownership diversity, said a joint filing Monday by groups including the American Civil Liberties Union, Free Press, Common Cause, the National Hispanic Media Coalition, Asian Americans Advancing Justice and the United Church of Christ Communications Office (UCC). The public interest advocates and NAB are battling via ex parte filings over proposed changes to the newspaper/broadcast ownership rule, though a majority of commissioners already voted on the draft quadrennial review order and the final order is expected to be released by next week (see 1607140069). “Eliminating the newspaper broadcast rule will aid neither small broadcasters or newspapers, nor such outlets owned by women and people of color,” said the public interest groups' filing. “Retaining a rule that deters investment by broadcasters in the struggling print newspaper industry certainly cannot serve the public interest,” NAB said in a filing Tuesday.
The FCC asked a court to suspend review of an inmate calling service case while the commission considers a draft order that would raise ICS rate caps that are being challenged in the litigation. The order "would meaningfully increase the rate caps challenged by the petitioners here, thus mooting or substantially altering the scope of issues central to this litigation," said a motion (in Pacer) from the FCC and DOJ to hold the case in abeyance. It was filed Wednesday at the U.S. Court of Appeals for the D.C. Circuit (Global Tel*Link, et al. v. FCC, No. 15-1461 and consolidated cases). Petitioner Telmate and intervenors supporting the FCC consented, but other petitioners are expected to file responses or oppositions, the motion said.
FCC General Counsel Jon Sallet, widely seen as a key deputy to Chairman Tom Wheeler, is leaving the agency for DOJ, to be replaced by Howard Symons, Incentive Auction Task Force vice chairman. Sallet had a hand in most major policy calls under Wheeler, starting with last year’s net neutrality rules, recently upheld the U.S. Court of Appeals for the D.C. Circuit, industry observers said. A former FCC legal adviser said Sallet was “instrumental in every key decision the chairman made.”