A lower court "got it just right" in its interpretation of federal statute allowing the federal judiciary to charge reasonable Pacer fees, a U.S. Court of Appeals for the Federal Circuit panel ordered Thursday, rejecting interlocutory cross-appeals by plaintiff-appellants National Veterans Legal Services Program, National Consumer Law Center and Alliance for Justice and by DOJ. The ruling (docket 19-1081) by Judges Todd Hughes, Alan Lourie and Raymond Clevenger, penned by Hughes, rejected the government's argument for vacating the lower court's summary judgment order because of a lack of jurisdiction under the Little Tucker Act. And it rejected both sides' read of statutory limits on Pacer fees and concurred with the lower court interpretation that the Pacer fees are limited to the amount needed to cover expenses incurred in services providing public access to federal court electronic docketing information. It remanded the case to U.S. District Court for the District of Columbia. Counsel for the plaintiff-appellants didn't comment. Oral argument was in February (see 2002030021).
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The House Appropriations Committee voted 30-22 Tuesday to advance the Commerce, Justice, Science and Related Agencies Subcommittee's FY 2021 funding bill with report language encouraging NTIA to coordinate with the FCC and other agencies “to preserve spectrum access for scientific purposes as commercial use of radio spectrum increases.” The underlying measure allocates $45.5 million for NTIA, just under $3.7 billion for the Patent Office, $1.04 billion for the National Institute of Standards and Technology and almost $180.3 million for DOJ’s Antitrust Division.
States and privacy advocates hailed a federal court ruling Tuesday that said Maine’s ISP privacy law isn’t preempted by Congress or the FCC. The U.S. District Court of Maine order (in Pacer) is a preliminary win for Maine’s 2019 law countering Congress’ 2017 Congressional Review Act (CRA) repeal of 2016 FCC broadband privacy rules. It could pave the way for more state privacy laws and may have implications for state net neutrality laws, said the state law's supporters.
Senate Health Committee Chairman Lamar Alexander, R-Tenn., said during a Wednesday hearing he wants Congress to make permanent two recent temporary rollbacks of telehealth restrictions. The Coronavirus Aid Relief and Economic Security Act Congress passed in March included language from the Creating Opportunities Now for Necessary and Effective Care Technologies for Health Act (HR-4982/S-2741) to expand telehealth services through Medicare. The Cares Act allowed the rules changes to remain in effect only during the COVID-19 pandemic (see 2003250046). “We ought to stop and think for a moment about how significant a change this is and whether it would have even possibly happened without” the crisis, Alexander said during the Senate Health hearing. Senate Commerce Committee Chairman Roger Wicker, R-Miss., and Communications Subcommittee ranking member Brian Schatz, D-Hawaii, are among lawmakers pushing to make the rules changes permanent (see 2006150032). Alexander also noted the temporary lift of Health Insurance Portability and Accountability Act security rules that allow patients to use FaceTime and other platforms to communicate with doctors. “The question of whether to extend the HIPAA privacy waivers should be considered carefully,” he said. “There are privacy and security concerns about the use of personal medical information by technology platform companies, as well as concerns about criminals hacking into these platforms.” American Telemedicine Association President Joseph Kvedar told Senate Health “we must make sure that essential telehealth services do not abruptly end with the public health emergency, especially as we look to reorient our healthcare system to deliver 21st century care.” University of Virginia Center for Telehealth Director Karen Rheuban also backed Alexander’s call for permanent rules changes, saying UVA “saw a greater than 9,000% increase in the use of telehealth” during the epidemic. Blue Cross Blue Shield of Tennessee Chief Medical Officer Andrea Willis told the committee it’s unclear whether increased telehealth use is going to result in higher premiums.
Satellite operators reject concerns mobile network operators (MNOs) raised about terrestrial operations in the 27.5-28.35 GHz upper microwave flexible use service (UMFUS) band (see 2005050034). Verizon and U.S. Cellular red flags are "a last-minute sandbagging attempt" at getting the FCC to revisit settled out-of-band emission (OOBE) issues in the adjacent 28.35-28.6 GHz band, said SES/O3b, Inmarsat and Hughes/EchoStar in a docket 17-95 posting Thursday. They challenged the call for OOBE limits specific to earth stations in motion (ESIM) to protect UMFUS in the 27.5-28.35 GHz band, saying the millions of licensed fixed terminals communicating with geostationary orbit satellites haven't caused UMFUS problems, so extending those rules to non-geostationary satellites shouldn't, either. They said deployed ESIMs will be a fraction of the fixed blanket-licensed earth stations already authorized for the 28.35-28.6 GHz band, so aggregate interference also isn't a realistic worry. Viasat said the ability of ESIMs to operate on a co-frequency basis with UMFUS systems in the 27.5-28.35 GHz band is extraneous to the draft ESIM order on the May 13 commissioners' agenda (see 2004220048). It said internationally, there's an interference threshold to protect terrestrial fixed and mobile services from co-frequency ESIM operations on a cross-border basis, so terrestrial fixed and mobile operators need to plan co-frequency ESIM operations in the 27.5-28.35 GHz band. Verizon emailed it and other U.S. carriers "have made significant investments to deploy robust 5G services to Americans using the 28 GHz band. Given the stakes in the international race to 5G, it is important that the FCC consider the interference risk that the proposed new ESIM satellite operations would pose to incumbent 5G operations in the adjacent 28 GHz band." CTIA said it argued in conversations with aides to Chairman Ajit Pai and Commissioner Mike O'Rielly co-channel sharing between ESIMs and UMFUS isn't feasible and the spectrum frontiers proceeding was specific about allowing only limited siting of new earth stations in UMFUS bands.
Some want more clarity about the FCC's role regulating broadband, said comments posted through Tuesday. The agency asked to refresh dockets including 17-287, on how broadband service's reclassification as an information, not telecom, service affects authority over Lifeline, pole attachment agreements and public safety. Commenters disagreed whether the FCC should reconsider based on the public safety considerations.
The FCC and the Office of the Solicitor General took aim at the 3rd U.S. Circuit Court of Appeals’s longtime oversight by the same three-judge panel (see 1909230067) over the commission’s quadrennial review process. The government's petition for certiorari was filed with the Supreme Court Friday, as expected (see 2004170050). “Intervention is necessary to restore the Commission’s discretion to regulate in the public interest,” the government told SCOTUS. A similar petition from broadcasters was also filed.
FCC workers and their National Treasury Employees Union praise the agency's precautions to protect employees from COVID-19. But NTEU filed an unfair labor practices grievance against the agency Monday over continuing contract negotiations during the pandemic, President Tony Reardon emailed us. The FCC acted faster than some other federal agencies, but critics told us none has responded quickly or well.
The Trump administration’s reported plan to create a COVID-19 data surveillance program with healthcare and tech companies lacks transparency, Democratic lawmakers wrote the White House Friday. They noted the industry's “checkered history” protecting patient and user privacy. Some stakeholders also raised concerns.
States are rapidly changing rules to increase telehealth access as a pandemic intensifies the need for remote care. Most policies weren't ready for the novel coronavirus, and even with states now taking emergency steps, “there’s a lot of work” left, said Mei Kwong, executive director of the Public Health Institute’s Center for Connected Health Policy. She and other experts predicted the virus will have a tremendous impact on telemedicine.