The 11th U.S. Circuit Court of Appeals should apply the U.S. Supreme Court’s recent ruling on agency enforcement actions to the FCC’s $518,000 forfeiture order against Gray Television, as well as SCOTUS’ ruling against Chevron deference, Gray said in a motion and supplemental reply brief Wednesday. The court previously ordered that the FCC and Gray file briefs weighing in on the application of the high court’s Loper Bright ruling against Chevron deference but didn’t do so for SEC v. Jarkesy, which is seen as potentially requiring jury trials for many agency enforcement actions. Jarkesy “raises the fundamental question of whether the FCC had the authority in the first place to conduct the proceeding that led to the forfeiture the FCC asks the Court to uphold,” Gray said in a motion. “Under these circumstances, Gray proposes as the most prudent course of action supplemental briefing on whether Jarkesy invalidates the FCC’s Forfeiture Order.” If the 11th Circuit were to find that the FCC’s claim against Gray is similar to the SEC forfeiture in Jarkesy, “then not only did Gray have the right to a jury trial, but also the Seventh Amendment prohibited Congress from assigning adjudication of the claim to the FCC,” Gray said. The court must also consider whether the FCC has statutory authority over Gray’s purchase of a network affiliation under Loper Bright, Gray Television said in a supplemental reply brief Wednesday. The FCC had argued that the court shouldn’t take up the agency’s authority because it was outside the scope of the supplemental briefs the court ordered (see 2408080052) and wasn’t previously raised in the proceeding by Gray. The Loper Bright opinion instructs courts to first determine the boundaries of an agency’s authority before ruling on whether an agency has engaged in “reasoned decision-making” within that authority, Gray said. The FCC also raised the issue of its statutory authority by discussing it in the forfeiture order it issued against Gray, Wednesday’s filing said. The Loper Bright decision “commands” that federal courts “must review all questions of law without deference to the agency whose action is under review,” Gray said.
GCI Communications urged that the FCC adopt a revised framework of the Alaska Plan for the Alaska Connect Fund. During a meeting with staff of the Wireline Bureau, Wireless Bureau and Office of Economics and Analytics, GCI proposed a framework built on the "existing and successful" Alaska Plan "rather than reinvent the wheel." In an ex parte filing posted Wednesday in docket 23-328, GCI said the state "has a uniquely challenging environment for deploying broadband services," so the commission should adopt a "two-phase approach." The first, it said, should be a 10-year term that builds on the existing plan with increased support levels to account for inflation. The second would require the commission to initiate a proceeding evaluating the results of NTIA's broadband, equity, access, and deployment program to evaluate and develop cost models.
The FCC on Wednesday approved a waiver of its rules for Federated Wireless requiring environmental sensing capability (ESC) systems to protect federal incumbents in the citizens broadband radio service band from harmful interference for markets that Hurricane Ernesto hits. The Wireless Bureau said the waiver is similar to those granted for similar storms and applies only to areas that experience power outages. It expires Aug. 28 or when commercial power and backhaul service are restored to the ESC sensors involved. Hurricane Ernesto made landfall as a Category 1 hurricane in Puerto Rico and the U.S. Virgin Islands late Tuesday.
More than 100 amateur radio operators have now filed objections to a NextNav proposal asking that the FCC seek comment on revised rules for the 902-928 MHz band (see 2408120024). Comments are due Sept. 5, replies Sept. 20, on a public notice from the FCC in docket 24-240.
House Commerce Committee ranking member Frank Pallone of New Jersey, Communications Subcommittee ranking member Doris Matsui of California and the subpanel’s 10 other Democrats said Wednesday they’re backing the FCC’s proposal that requires disclosures on political ads created with generative AI (see 2407250046). The FCC is facing pushback from congressional Republicans over the AI proposal, as demonstrated during a July House Communications hearing (see 2407090049). NAB and the Motion Picture Association are seeking a 30-day extension for comments on the proceeding in docket 24-211 (see 2408120034). Comments are currently due Sept. 4, replies Sept. 19. “We believe that this action is necessary considering the growing impact of generative AI tools on our electoral process,” the House Communications Democrats said in a letter to FCC Chairwoman Jessica Rosenworcel. “While AI is not new, the speed at which we are witnessing the deployment of generative AI is staggering. During this election season, we have already seen AI deployed to manipulate, confuse and misinform voters.” The Democratic lawmakers pushed back against claims by Republican Federal Election Commission Chairman Sean Cooksey and others that the FEC has sole authority over political reporting requirements and disclaimers (see 2406060051). “Such arguments ignore the relevant statutes and decades of precedent,” the Democrats said: “We also find it worrisome that such a simple, consumer-friendly proposal that imposes minimal burdens has evoked such strong opposition from Republicans -- even well before the full text of the proposal was released to the public” in late July (see 2407250046).
Seventy-eight Puerto Rican and three U.S. Virgin Islands’ municipalities remain in the disaster area of Tropical Storm Ernesto, the FCC said in Wednesday’s disaster information reporting system report (see 2408130047). No public safety answering points were reported down, though nearly 10% of cellsites in Puerto Rican affected counties were. The U.S. Virgin Islands reported 26.4% of cellsites down. Cable and wireline companies reported 287,294 subscribers without service in the disaster area. No TV or radio stations were said to be down.
The objective of Consumers' Research was getting a case about the Universal Service Fund contribution methodology before the U.S. Supreme Court. That case resulted in the 5th U.S. Circuit Court of Appeals' recent 9-7 en banc decision that found the contribution factor is a "misbegotten tax," legal experts said during a Schools, Health & Libraries Broadband Coalition webinar Wednesday. The 5th Circuit remanded the contribution factor for Q1 2022 to the FCC for further work.
The U.S. Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo (see 2406280043) doesn’t foreclose the FCC's ability to act on net neutrality and other important public issues, Stephanie Joyce, senior vice president-chief of staff at the Computer & Communications Industry Association, said during a Broadband Breakfast webinar Wednesday.
It's "astonishing that the FCC is once again seeking to impose heavy-handed regulation on internet access," TechFreedom and the Washington Legal Foundation told the 6th U.S. Circuit Court of Appeals Wednesday. The groups urged the court in an amicus brief Wednesday that it should reverse the commission's order restoring Title II classification of broadband (see 2408130001). Their brief said the "only question for this court" is whether the FCC has the statutory authority to act (docket 24-7000), arguing the order is a violation of the major questions doctrine.
Serverless platform technology company DBOS appoints Jeremy Edberg, ex-Lambda, as CEO and to board ... Canadian mobile carrier Videotron and Freedom mobile promote Jean-Francois Lescadres to senior vice president-CFO and Jean Peladeau to senior vice president-chief marketing officer ... Senior Vice President-CFO Mike Lopez retiring from Ribbon Communications end of year ... FCC announces members of Communications, Equity and Diversity Council including Chair Heather Gate, Connected Nation executive vice president-digital inclusion; Vice Chairs Nicol Turner Lee, director-Brookings Institution’s Center for Technology Innovation, and Susan Au Allen, CEO-US Pan Asian American Chamber of Commerce Education Foundation; Digital Empowerment and Inclusion Working Group Chair Anisa Green, AT&T director-federal regulatory; and Diversity and Equity Working Group Chair Christopher Wood LGBT Tech executive director (see 2408130043) … Telecom fraud prevention company Somos appoints Sinch’s Stacy Graham to advisory board ... Platform, cloud and managed services company Calix names Wade Oosterman, ex-Bell Canada, to board.