The FCC should reverse course on its proposed $150,000 penalty against Mission Broadcasting (see 2401120069) in light of recent U.S. Supreme Court decisions on agency enforcement and Chevron deference, Mission said in a supplemental filing posted Tuesday in docket 22-443. The proposed penalty is from a January notice of apparent liability over accusations from Comcast that Mission violated the FCC’s rules on good faith retransmission consent negotiation by allowing Nexstar -- which operates all of Mission’s stations – to negotiate on Mission’s behalf for WPIX New York. “Just as courts should no longer defer to agency interpretations of statutes, neither should they defer to agency interpretations of regulation” after SCOTUS’ Loper Bright v. Raimondo decision, Mission said. The FCC’s NAL is based on “irrational interpretations” of FCC rules and precedent and the agency hasn’t shown that Mission’s violations were willful and continuous, Mission said. “Common sense demands that the presentation of a contract proposal is a ‘discrete act,’ not a continuing violation, and the NAL’s contrary reading of the statutory term is inconsistent with FCC and judicial precedent,” Mission said. Under the high court’s SEC v. Jarkesy ruling, the FCC’s proposed forfeiture would violate the Seventh Amendment right to a jury trial, Mission said. Jarkesy “confirms that the FCC’s enforcement regime suffers from constitutional deficiencies,” Mission said. Attorneys have widely predicted that the Loper Bright and Jarkesy decisions will be raised in nearly every FCC enforcement proceeding going forward (see 2407250030). Mission and Nexstar are also facing a second, $1.8 million NAL connected with Mission’s operation of WPIX (see 2403220067).
The FCC hasn’t shown why the 11th U.S. Circuit Court of Appeals shouldn’t consider the U.S. Supreme Court’s SEC v. Jarkesy in ruling on Gray’s appeal of a $518,000 FCC forfeiture order (see 2408270053), Gray said in a reply filing Tuesday. “The FCC objects that -- although the Supreme Court decided Jarkesy after oral argument in this appeal -- Gray should have raised Jarkesy in its opening brief and in the forfeiture proceeding,” Gray said. “The FCC is incorrect, and it offers no valid argument to deny supplemental briefing.” In the SEC v. Jarkesy opinion, SCOTUS ruled that the SEC couldn't impose monetary fines for some offenses without holding a jury trial. Jarkesy “is an intervening Supreme Court decision whose reasoning has provided Gray with a new theory to challenge the Forfeiture Order,” and can be raised in the case under court precedent, Gray said. Accounting for Jarkesy in the case wouldn’t be prejudiced against the FCC because the case has already been raised in AT&T’s challenge of an FCC forfeiture (see 2408060035), Gray said. “It would be unjust to deny supplemental briefing.”
The FCC has determined that cybersecurity and anti-virus software that Russia’s Kaspersky Lab produced or provided poses “an unacceptable risk to the national security” of the U.S. and should be on the agency’s covered list of unsafe products, a Tuesday notice said. Any gear “that integrates cybersecurity or anti-virus software produced or provided by Kaspersky, or any of its successors or assignees, is prohibited from obtaining an equipment authorization from the Commission,” said the notice by the Office of Engineering and Technology and Public Safety Bureau. Kaspersky was initially added to the list in 2022 (see 2203270001).
FCC Commissioner Brendan Carr supported SpaceX CEO Elon Musk in online posts and remarks over the weekend, condemning the actions of a Brazilian judge against Musk’s X social media platform as part of a global movement toward censorship. Brazilian Supreme Court Justice Alexandre de Moraes issued an order banning X Friday. “de Moreas’ own words make clear that he is attempting to strike a broader blow against free speech and in favor of authoritarian controls,” Carr wrote in a long X post on de Moraes’ opinion. “With X refusing to cave to secret and unlawful demands, you’re now seeing public and unlawful demands instead,” Carr wrote. He also reposted Musk's comments, condemning de Moraes as a dictator during an audio-only X Spaces stream. “This is part of a global movement where people believe that they can get away with what would otherwise be characterized as naked authoritarian actions, provided that they use the rubric of doing this to, quote, preserve democracy or save democracy,” Carr said. “If you are going particularly after the right type of political enemies, which happen right now, for whatever reason, to be sort of the populist right,” then “there's been a level of acceptance,” said Carr. “What is happening in Brazil that should be immediately and clearly rejected by the right, the left and the center, because once we erode these ideas of free speech and individual liberty every single one of us end up being harmed at the end of the day.” Carr has increasingly engaged with Musk on X (see 2408190040) in recent weeks (see 2408270048), visited SpaceX in August and posted a picture of himself and Musk together last week.
CTIA asked for further clarity as the FCC seeks comment on expanded federal use of commercial satellite spectrum bands (see 2406280034). “The uncertainty and lack of consensus in the record demonstrate that further progress cannot be made without explicit clarification by the Commission and [the Office of Engineering and Technology] regarding what spectrum bands are being considered for expanded Federal use and, subsequently, thorough consideration and resolution of the issues in each band,” a filing posted Tuesday in docket 24-121 said. “Discrepancies” between a 2013 NPRM and 2021 Further NPRM “leave unclear what bands are now under consideration, frustrating the purpose of the process to afford commenters a meaningful opportunity to respond,” CTIA said.
China-based Hikvision USA asked the FCC to “move forward in a timely manner to review and approve” its proposed plan for compliance with agency rules (see 2308070047). Hikvision representatives spoke with staff from the Office of General Counsel and Public Safety Bureau, said a filing posted Tuesday in docket 21-232. The company is on the FCC’s covered list of organizations that pose a threat to U.S. security. “At present, Hikvision and its affiliates are unable to obtain equipment authorizations on any of its equipment, including non-covered equipment, due to both a lack of clarity as to the scope of ‘video surveillance’ and ‘telecommunications equipment’ that is covered and the lack of an approved compliance plan,” the company said.
The FCC's new five-year compensation plan for IP-captioned telephone services takes effect Oct. 4, said a notice for Wednesday's Federal Register. Commissioners adopted the new plan last month, with Commissioners Brendan Carr and Nathan Simington concurring in part (see 2408010025).
The White House Office of the National Cyber Director released guidance Tuesday, dubbing it a "roadmap," addressing "key vulnerabilities" in border gateway protocol (BGP) security. ONCD urged "every network operator use a risk-based approach to address BGP vulnerabilities" through the adoption of resource public key infrastructure (RPKI), which includes route origin authorization and origination, calling it a "mature, ready-to-implement approach to mitigate BGP’s vulnerabilities."
The ultimate makeup of the 6th U.S. Circuit Court of Appeals panel that hears the review of the FCC’s net neutrality order may not make much difference, some legal experts told us, in the wake of recent U.S. Supreme Court decisions. They doubted that the panel (docket 24-7000) will delve deeply into case law, instead simply deciding that going forward it's Congress, not the FCC, that must address any case that raises "major questions." Oral argument is scheduled for Oct. 31.
Global Digital Inclusion Partnership launches fellowship program, with Robert Pepper, ex-FCC and Facebook, and Phumzile Mlambo-Ngcuka of South Africa as inaugural senior fellows ... Jason Kim, ex-Millennium Space Systems, named CEO of Firefly Aerospace.