Court case

[Commentary] It is nice that network neutrality proponents are finally embracing the arguments that those of us who have been critical of the FCC’s Open Internet efforts have been making for nearly the past decade. This newfound concurrence, however, does raise interesting questions about how the inevitable legal challenge to the Restoring Internet Freedom Order (RIFO) will proceed.

[Commentary] Federal Communications Commission Chairman Ajit Pai faces a serious legal problem. Because he is killing net neutrality outright, not merely weakening it, he will have to explain to a court not just the shift from 2015 but also his reasoning for destroying the basic bans on blocking and throttling, which have been in effect since 2005 and have been relied on extensively by the entire internet ecosystem. This will be a difficult task. What has changed since 2004 that now makes the blocking or throttling of competitors not a problem?

AT&T and Comcast have convinced a federal judge to nullify an ordinance that was designed to bring more broadband competition to Nashville, Tennessee. In 2016, the Nashville Metro Council passed a "One Touch Make Ready" rule that gives Google Fiber or other new ISPs faster access to utility poles. The ordinance lets a single company make all of the necessary wire adjustments on utility poles itself, instead of having to wait for incumbent providers like AT&T and Comcast to send work crews to move their own wires.

Although the Federal Communications Commission is expected to adopt FCC Chairman Ajit Pai's new net neutrality proposal in December 2017, that won’t end a debate that’s roiled the tech world for years. Aggrieved parties will try to save the regulations in federal court, where judges will decide whether the agency is within its rights to reverse a regulation it adopted little more than two years ago. Legally, the agency can reverse its rules if it has a good reason.

A senior adviser for the European Union's top court told an Austrian privacy activist that he can't sue Facebook on behalf of 25,000 people. The adviser said that activist Max Schrems could sue the company on his own but that a class action suit would likely fall flat in court. Schrems has accused the social network of violating European privacy laws, taking aim at what he sees as invalid privacy policies and data-sharing agreements the company has with US intelligence agencies.

The Federal Communications Commission told the DC Circuit Court of Appeals it was reasonable to reinstate the so-called UHF discount in April because it is “inextricably intertwined” with the 39 percent national audience reach limit imposed on broadcasters. Remember, the UHF discount allows broadcasters to count half the reach of UHF TV stations when calculating adherence to that 39 percent limit.

[Commentary] In a few weeks, it is widely expected that the Federal Communications Commission will release a draft order reversing the Obama Administration’s controversial 2015 decision to reclassify broadband internet access from a lightly-regulated “information” service under Title I of the Communications Act to a heavily-regulated common carrier “telecommunications” service under Title II of that same Act. As with the original 2015 decision, a court appeal of this policy change is a virtual certainty. Yet, even though the DC Circuit in USTelecom v.

The Federal Communications Commission has weighed in with a federal court to support Charter's challenge to the Minnesota Public Utilities Commission's application of legacy Title II telecom regulations to its interconnected VoIP phone service. The case is being heard by the Eighth Circuit Court of Appeals, which includes Minnesota. "The Minnesota PUC has adopted a blunderbuss approach to VoIP regulation that threatens to disrupt the national voice services market," the FCC's legal team says.

Thirty-five state attorneys general and the District of Columbia this week signed on to support South Dakota's legal bid to collect sales taxes from out-of-state Internet retailers. South Dakota is asking the US Supreme Court to review whether retailers can be required to collect sales taxes in states where they lack a physical presence. The case could have national implications for e-commerce. South Dakota Attorney General Marty Jackley said that Colorado filed a friend-of-the-court brief supporting South Dakota's petition to the high court.

[Commentary] One of the biggest cases for the US Supreme Court’s current term could mark a watershed moment for the Fourth Amendment. In Carpenter v. United States, the court will consider whether police need probable cause to get a search warrant to access cell site location information (CSLI), data that's automatically generated whenever a mobile phone connects to a cell tower. Not only does this case offer a chance to protect privacy rights for cell phones, Carpenter also provides an opportunity to reevaluate an antiquated legal theory, called the third-party doctrine, that underpins many government surveillance programs.

If the Supreme Court rules that CSLI falls outside the Fourth Amendment, warrantless searches will inevitably lead to wrongful seizures.

[Nick Sibilla is a legislative analyst at the Institute for Justice, a libertarian-leaning public interest law firm.]