Court case

Developments in telecommunications policy being made in the legal system.

Court Rejects Request To Stay UHF Discount

The US Court of Appeals for the DC Circuit denied the emergency stay motion filed by public interest groups that sought to prevent the Federal Communications Commission from implementing its decision to reinstate the so-called UHF discount that the groups claim will “make it easier for the nation’s largest television ownership groups to acquire additional stations, and crowd out diverse and local voices.” A stay would have prevented the UHF discount from going into effect while the court hears the case on its merits. Restoring the UHF discount to its national ownership rule, in effect, raises the limit on household coverage of TV station groups from 39% to 78%.

The decision is good news for Sinclair Broadcast Group, which needs it to implement its proposed agreement to buy Tribune Media for $3.9 billion and assumption of debt. That deal would increase Sinclair's household reach to 72%. The FCC had urged the court to deny the stay, saying the public interest groups’ request fell "far short" of meeting the criteria for a stay.

A New Court Ruling Harms Prisoners Nationwide -- Including My Cousin

[Commentary] My cousin Charlie is serving time in an upstate New York prison. On June 13, a federal appeals court struck down several provisions in the Federal Communications Commission’s recent decisions to cap the cost of prison- and jail-phone calls. This ruling is a real blow to my family and many others like mine across the country. It’s also a huge step backward.

In late 2015, the FCC voted to reduce the steep cost of prison-phone calls charged to incarcerated people and their families. Many inmates and their families had spent years fighting to cap these calls, which can run to more than a dollar per minute. When the FCC voted to implement the caps I felt a sense of relief knowing that Charlie would be able to afford to call my grandmother on a more regular basis without worrying that he’d deplete his commissary on just phone calls. But soon after these rules were adopted the prison-phone industry sued the agency. In February 2017, Donald Trump’s newly appointed FCC chairman, Ajit Pai, said the agency’s lawyers wouldn’t defend key aspects of these rules in court — paving the way for Tuesday’s decision.

Words Still Matter

[Commentary] On June 12, the 9th Circuit became the latest court to block President Donald Trump's revised travel ban, his second attempt to limit travel from six majority Muslim nations. The decision was not a surprise, as the Trump administration has not had much luck in the courtroom. But its timing – just after former FBI director James Comey testified before Congress and just before Attorney General Jeff Sessions does – reveals that even in the Trump era, there are places where words still matter.

Since Trump launched his presidential bid two years ago, the power of words and facts has been in doubt. As candidate and now president, Trump has lavished Americans with promises that he immediately broke. He has spread lies and conspiracies that are breathtaking in their obvious falseness. He has hurled accusations, threats and slurs that would have been unimaginable for any presidential candidate in the last several decades. And despite – or maybe because – of it all, he won the presidency. So Americans could be forgiven for thinking we now live in a world where facts, promises and words no longer matter, where the president can say whatever he likes without consequences. Only it turns out, there are still some situations where words matter a great deal.

[She is an assistant professor at the Miller Center of Public Affairs and a research associate at the US Studies Centre at the University of Sydney.]

Judge Backs Making Consumer Websites Accessible to Blind

US District Judge Robert Scola ruled that grocery chain Winn-Dixie Stores must make its website accessible to the blind, following an unprecedented trial over a gray area of accessibility law.

The decision adds momentum to a push by plaintiffs’ lawyers and disability-rights groups to make all consumer websites accessible to the blind and hearing-impaired. Uncertainty in the federal Americans with Disabilities Act and a lack of Justice Department guidance has created widespread confusion over whether websites must meet the same stringent accessibility standards as stores do. Plaintiffs’ lawyers have latched on to the ambiguity to launch hundreds of website accessibility lawsuits, most of which privately settle. The latest ruling “is definitely a game-changer,” said Minh Vu, a partner at Seyfarth Shaw LLP who represents companies facing accessibility claims and is not involved in the case. While the decision is only immediately applicable to Winn-Dixie, Ms. Vu said, it sends a signal to other companies that “there’s a very real possibility a judge could find this way.”

Commissioner Mignon Clyburn's Statement on Inmate Calling Decision in DC Circuit

Today’s DC Circuit decision is deeply disappointing, not just for me and the many advocates who have fought for more than a decade to bring about much needed reform in the inmate calling services is a sad day for the more than 2.7 million children in this country with at least one incarcerated parent. But the families who have experienced the pain, anguish and financial burden of trying to communicate with a loved one in jail or prison, are still counting on us, so we will press on.

I remain committed to doing everything I can from working with my colleagues at the Commission, to supporting the efforts of Congress and those in the states to bring relief to millions who continue to suffer from the greatest form of regulatory injustice I have seen in my 18 years as a regulator in the communications space.

How should an originalist rule in the Fourth Amendment cell-site case?

[Commentary] The Supreme Court recently agreed to hear Carpenter v. United States, a case on whether the Fourth Amendment protects historical cell-site records. In this post, I want to focus on a small but potentially important part of the Carpenter litigation: How should an originalist Justice vote in the case?

There are many different flavors of originalism, of course, and originalist arguments often can be used to argue for different outcomes. But in this post I want to discuss one originalist argument that I think is significant. Let’s start with the obvious: The Framers could not have imagined a world of cell-site records. And the original public meaning of the Fourth Amendment is open to a wide range of interpretations at different levels of generality. With that said, the text of the Fourth Amendment does have an important clue about what the Fourth Amendment was originally understood to mean that might be important to the Carpenter case.

[Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School]

FCC Chairman Pai Statement On D.C. Circuit Inmate Calling Decision

Today, the DC Circuit agreed with my position that the FCC exceeded its authority when it attempted to impose rate caps on intrastate calls made by inmates. Looking ahead, I plan to work with my colleagues at the Commission, Congress, and all stakeholders to address the problem of high inmate calling rates in a lawful manner.

DC and Maryland to sue President Trump, alleging breach of constitutional oath

Attorneys general for the District of Columbia and the state of Maryland say they will sue President Donald Trump on June 12, alleging that he has violated anti-corruption clauses in the Constitution by accepting millions in payments and benefits from foreign governments since moving into the White House.

The lawsuit, the first of its kind brought by government entities, centers on the fact that Trump chose to retain ownership of his company when he became president. President Trump said in January that he was shifting his business assets into a trust managed by his sons to eliminate potential conflicts of interests. But DC Attorney General Karl Racine (D) and Maryland Attorney General Brian Frosh (D) say President Trump has broken many promises to keep separate his public duties and private business interests. For one, his son Eric Trump has said the President would continue to receive regular updates about his company’s financial health. The lawsuit alleges “unprecedented constitutional violations” by President Trump. The suit says Trump’s continued ownership of a global business empire has rendered the President “deeply enmeshed with a legion of foreign and domestic government actors” and has undermined the integrity of the US political system.

Free Press: FCC's UHF Discount Decision Makes No Sense

Free Press and the other challengers to the Federal Communications Commission's decision to reinstate the UHF discount have told a federal court that it makes no sense for the FCC to reinstate a rule it concedes is obsolete "based on the mere possibility that the Commission will, in the future, open a proceeding to consider something that, as of now, a majority of the Commission believes it cannot or should not do." That came in their filing in support of a request for an emergency stay of the implementation of the UHF discount, which was scheduled to happen June 5 but was delayed by the US Court of Appeals for the DC Circuit to allow more time for it to consider that stay request and the FCC's response. The filing was also in response to Sinclair's intervention in support of the FCC and in opposition to Free Press' motion for stay.

In defending the stay to the court, Free Press attorneys pointed out that even in voting for returning the discount, FCC Commissioner Michael O'Rielly said he did not think the FCC had the authority to adjust the statutorily-set 39% cap on a TV station group owner's national audience reach, the reconsideration of which FCC Chairman Ajit Pai had given as a reason for reinstating the discount he conceded was likely obsolete and instead reviewing the discount along with the 39% cap.

USTelecom and its Aftermath

As detailed in this BULLETIN, a proper implementation of Title II precluded the Federal Communications Commission’s approach, forcing the Agency to ignore the “vast majority of rules adopted under Title II” and “tailor[] [Title II] for the 21st Century.” Surprisingly, the DC Circuit found in United States Telecom Association v. FCC that the agency had wide latitude to interpret the Communications Act and not only upheld the agency’s decision to reclassify but also its gross distortion of Title II. In so doing, the DC Circuit has extended Chevron deference beyond any reasonable limit, greatly expanding the Commission’s authority well beyond its statutory mandate.

This BULLETIN first presents several examples of how the 2015 Open Internet Order ignores both the plain language of Title II and the extensive case law to achieve select political objectives, followed by a discussion of the DC Circuit’s acceptance of such legal perversions. Next, this BULLETIN discusses how the FCC attempted to use the same theory of the case found in USTelecom to regulate the prices of Business Data Services. Conclusions and policy recommendations are at the end.