Securus Technologies challenged in court the FCC’s interpretation of a stay order from the court on inmate calling service rates released Wednesday. The FCC released a public notice that found that the U.S. Court of Appeals for the D.C. Circuit didn’t stay the definition of inmate calling from the 2015 ICS order, which included interstate and intrastate calling, so 2013 rates will apply to both (see 1603160068). Securus sought a modification of its initial stay.
Merrick Garland, President Barack Obama's Supreme Court pick, is highly respected by communications attorneys we talked to Wednesday after the White House announced his nomination. Garland has been a judge since 1997 on the U.S. Court of Appeals for the D.C. Circuit, which decides many FCC cases, and he is now chief judge. "People get jaded about hearing judicial nominees described as 'brilliant' and 'unbiased' and having a 'perfect judicial temperament.' But it's all true here. No one can oppose this choice on the merits,'" said Harris Wiltshire attorney Chris Wright, a former FCC general counsel, who has argued several cases before Garland and read many of his opinions. "He's a great judge," said another telecom attorney. "He's straight down the line, a good judge, a very solid appointment," said a media attorney. "He's certainly qualified, but it sounds like he doesn't have a snowball's chance in hell of getting confirmed. It would take a miracle." Republican senators have vowed not to act on Garland's nomination. Despite Garland's long tenure, some attorneys said it's hard to pigeonhole his communications views. Andrew Schwartzman, Georgetown University Institute for Public Representation senior counselor, said Garland doesn't have a clear-cut "communications track record," because most of his FCC decisions weren't in big cases. "I'd have to go back and look," he said. Another veteran attorney, who called Garland a moderate Democrat and "smart guy," had a similar impression: "I don't believe he's been a key player in many major FCC decisions." One significant case Garland did help decide was a Verizon challenge to FCC wireless data-roaming rules, where he joined two other judges in upholding the agency's order in December 2012 (Cellco Partnership v. FCC). Judge David Tatel wrote that opinion.
Merrick Garland, President Barack Obama's Supreme Court pick, is highly respected by communications attorneys we talked to Wednesday after the White House announced his nomination. Garland has been a judge since 1997 on the U.S. Court of Appeals for the D.C. Circuit, which decides many FCC cases, and he is now chief judge. "People get jaded about hearing judicial nominees described as 'brilliant' and 'unbiased' and having a 'perfect judicial temperament.' But it's all true here. No one can oppose this choice on the merits,'" said Harris Wiltshire attorney Chris Wright, a former FCC general counsel, who has argued several cases before Garland and read many of his opinions. "He's a great judge," said another telecom attorney. "He's straight down the line, a good judge, a very solid appointment," said a media attorney. "He's certainly qualified, but it sounds like he doesn't have a snowball's chance in hell of getting confirmed. It would take a miracle." Republican senators have vowed not to act on Garland's nomination. Despite Garland's long tenure, some attorneys said it's hard to pigeonhole his communications views. Andrew Schwartzman, Georgetown University Institute for Public Representation senior counselor, said Garland doesn't have a clear-cut "communications track record," because most of his FCC decisions weren't in big cases. "I'd have to go back and look," he said. Another veteran attorney, who called Garland a moderate Democrat and "smart guy," had a similar impression: "I don't believe he's been a key player in many major FCC decisions." One significant case Garland did help decide was a Verizon challenge to FCC wireless data-roaming rules, where he joined two other judges in upholding the agency's order in December 2012 (Cellco Partnership v. FCC). Judge David Tatel wrote that opinion.
A federal court reviewing an FCC order pre-empting North Carolina and Tennessee laws restricting municipal broadband efforts signaled interest in related legislation pending in both states. With oral argument scheduled for Thursday in Cincinnati, the 6th U.S. Circuit Court of Appeals wrote litigants in the North Carolina and Tennessee challenges to the FCC pre-emption order (Tennessee v. FCC, No. 15-3291, North Carolina v. FCC, No. 15-3555). “The panel directs counsel for the parties in this case that, in addition to addressing the arguments in the briefs, they should be prepared to answer questions about the significance, if any, of the pending legislation in both states that would amend the statutes to remove the barriers preempted by the FCC (Tenn. -- HB2133/SB2200 and NC HB349),” the clerk of the court wrote in a brief letter Friday. The only reason for the court to ask about the pending bills is if it suspects they might be enacted in the near future and moot aspects of the case, said Brad Ramsay, general counsel for NARUC, which intervened in support of the two states. But the odds of both bills being enacted are “very slim,” he told us Monday. “The legislation hasn’t passed, so you have a live case and controversy.” The court’s query is a bit “odd,” said Andrew Schwartzman, senior counselor at the Georgetown Institute for Public Representation, who filed an amicus brief supporting the FCC order on behalf of the Benton Foundation and other public-interest groups. “It is not unusual for some courts to notify the parties to be prepared to address particular questions, and that’s really helpful,” he told us. “But the questions here would be best done by letter because they’re completely speculative.” Nobody knows whether the bills will pass and in what form, he said. The FCC and North Carolina and Tennessee litigants had no comment.
A federal court reviewing an FCC order pre-empting North Carolina and Tennessee laws restricting municipal broadband efforts signaled interest in related legislation pending in both states. With oral argument scheduled for Thursday in Cincinnati, the 6th U.S. Circuit Court of Appeals wrote litigants in the North Carolina and Tennessee challenges to the FCC pre-emption order (Tennessee v. FCC, No. 15-3291, North Carolina v. FCC, No. 15-3555). “The panel directs counsel for the parties in this case that, in addition to addressing the arguments in the briefs, they should be prepared to answer questions about the significance, if any, of the pending legislation in both states that would amend the statutes to remove the barriers preempted by the FCC (Tenn. -- HB2133/SB2200 and NC HB349),” the clerk of the court wrote in a brief letter Friday. The only reason for the court to ask about the pending bills is if it suspects they might be enacted in the near future and moot aspects of the case, said Brad Ramsay, general counsel for NARUC, which intervened in support of the two states. But the odds of both bills being enacted are “very slim,” he told us Monday. “The legislation hasn’t passed, so you have a live case and controversy.” The court’s query is a bit “odd,” said Andrew Schwartzman, senior counselor at the Georgetown Institute for Public Representation, who filed an amicus brief supporting the FCC order on behalf of the Benton Foundation and other public-interest groups. “It is not unusual for some courts to notify the parties to be prepared to address particular questions, and that’s really helpful,” he told us. “But the questions here would be best done by letter because they’re completely speculative.” Nobody knows whether the bills will pass and in what form, he said. The FCC and North Carolina and Tennessee litigants had no comment.
Although it isn't unusual for administrative agencies to reverse themselves, FCC flip-flopping on Latina Broadcasters' inclusion in the incentive auction may be extreme, attorneys and an administrative law expert told us. Though courts tend not to be sympathetic to arguments an agency didn't provide enough notice of a change in policy, the U.S. Court of Appeals for the D.C. Circuit may feel the radical shift on Latina “doesn't pass the smell test,” said George Washington University administrative law professor Richard Pierce in an interview. The FCC repeatedly telling Latina it's included in the auction and then excluding it with so little time before the March 29 start (see 1603070057) is likely to look bad for the commission and increase D.C. Circuit scrutiny of the FCC's actions, Pierce said. A rapid shift in policy often can indicate some “questionable” administrative procedure is being used, he said.
Federal judges blocked new FCC inmate calling service rate caps and one other set of fee restrictions, pending further judicial review, while leaving untouched the rest of the commission’s 2015 ICS order. In a short order Monday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit partially granted ICS provider motions, issuing a stay of rules capping interstate and intrastate ICS rates at between 11 cents and 22 cents per minute, and of a rule capping ancillary fees for single-call and related services, but denied the stay requests in all other respects in the consolidated case Global Tel*Link v. FCC, No. 15-1461. It also denied a separate motion of Oklahoma state officials seeking a stay.
Broadband providers and consumer advocates jointly backed modernizing Lifeline USF support for low-income subscribers. Almost two dozen major telcos, cable companies, consumer groups and public-interest organizations signed a letter to commissioners Tuesday saying it was time to use Lifeline subsidies to make broadband more affordable for low-income persons and change the way the program is administered regarding consumer eligibility verification and industry participation. An informed source said the FCC continues to target its March 31 meeting for adopting a Lifeline order, as expected (see 1602180055).
Broadband providers and consumer advocates jointly backed modernizing Lifeline USF support for low-income subscribers. Almost two dozen major telcos, cable companies, consumer groups and public-interest organizations signed a letter to commissioners Tuesday saying it was time to use Lifeline subsidies to make broadband more affordable for low-income persons and change the way the program is administered regarding consumer eligibility verification and industry participation. An informed source said the FCC continues to target its March 31 meeting for adopting a Lifeline order, as expected (see 1602180055).
Broadcasters have concerns about and may soon begin a lobbying push in Congress and at the FCC over the commission's policy on broadcast transactions that contain joint sales agreements, broadcast attorneys and industry officials told us. The FCC needs to fall in line with the congressional adjustments to the JSA attribution rules, some broadcast attorneys told us. In a provision of the FY 2016 omnibus appropriations law, the deadline to unwind existing JSAs was moved from June 2016 to Oct. 1, 2025 (see 1512210050). The deadline also was raised by some on Capitol Hill, who mentioned concern the commission is trying to get around the JSA law change (see 1602230070).