Our Court Motions to Oppose the Premature Open Internet Challenges

Posted January 28th, 2011 by Austin Schlick - General Counsel

The rules that govern when and how parties may challenge FCC orders are clear, and Verizon and MetroPCS filed too early when they challenged the Open Internet order.

Today, the FCC filed several motions with the U.S. Court of Appeals for the District of Columbia Circuit asking that court to dismiss both companies' challenges as premature.

For easy public access, we have posted the motions below:

Cross-posted from OpenInternet.gov

Posted in Office of General Counsel

ON DECK: Pending and Upcoming Appellate Litigation Involving the FCC

Posted October 27th, 2010 by Richard Welch

During spring training, on the cusp of the major league baseball season, the Office of General Counsel discussed several significant cases involving the FCC that were pending before the appellate courts.  See "On Deck" blog entry dated February 19, 2010.  Now that the baseball season draws to a close, we thought this might be a good time to provide an update on these cases and other upcoming appellate litigation involving the agency.

The FCC in the Supreme Court
The Freedom of Information Act.  In FCC v. AT&T, Inc, No. 09-1279, the Supreme Court of the United States will decide whether the FCC properly applied the Freedom of Information Act in a case involving the agency's investigation into AT&T's alleged over-billing of the United States Government for services it provided under an FCC program for schools and libraries.  The Freedom of Information Act (commonly known as the "FOIA") is the federal law that permits the public to request and obtain copies of records from the Government.  After a trade association filed a FOIA request asking the FCC to release certain documents the agency obtained during its investigation, AT&T sued the FCC to block release of the documents, relying on FOIA Exemption 7(C).  That provision exempts from mandatory public disclosure records or information compiled for law enforcement purposes, when disclosure could reasonably be expected to constitute an unwarranted invasion of "personal privacy."  The question facing the Supreme Court is whether Exemption 7(C)'s protection for "personal privacy" protects corporations in addition to individuals.  In September 2009, the Third Circuit Court of Appeals in Philadelphia held that corporations can have protected "personal privacy" interests under Exemption 7(C).  The Supreme Court recently granted the request of the FCC and the United States Department of Justice to review that decision. Briefs are due by the end of this year, oral argument likely will be heard early in 2011, and the Supreme Court is expected to issue its decision by June 2011.

Intercarrier Compensation for Dial-up Internet Access Traffic.  In January of this year, the D.C. Circuit Court of Appeals upheld the FCC's authority to regulate the rates charged between carriers that collaborate to carry dial-up Internet access traffic. The Pennsylvania Public Utilities Commission and a local carrier whose customers are Internet Service Providers (Core Communications, Inc.) have asked the Supreme Court to review the D.C. Circuit's decision.  The FCC and the Justice Department recently filed a brief opposing their petitions. By mid-November, we expect the Supreme Court to announce whether it will hear the case.

The FCC in the Courts of Appeals
Broadcast Indecency Enforcement.  In our February 2010 blog entry, we discussed several pending cases involving the FCC's enforcement of the statutory and regulatory prohibition against indecent programming on broadcast television.  All remain pending.  The most prominent case is Fox Television Stations, Inc. v. FCC, which presents a constitutional challenge to the FCC's decisions finding violations of the broadcast indecency statute and regulations for Fox's broadcast of expletives by celebrities Cher and Nicole Richie on live television awards shows.  In July of this year, a three-judge panel of the Second Circuit Court of Appeals in New York ruled that the FCC's indecency policy is unconstitutionally vague and therefore violates the First Amendment rights of broadcasters. The FCC has asked all active judges on that appeals court to review the panel's decision. That request remains pending before the court.

We also await a decision by the Third Circuit in CBS Corp. v. FCC, another broadcast indecency case, which was argued in February 2010.  At issue is CBS's broadcast of the 2004 Super Bowl halftime show in which Janet Jackson, performing with Justin Timberlake, suffered what some have described as a "wardrobe malfunction."  CBS is challenging the $550,000 forfeiture that the FCC assessed against certain CBS-owned affiliates for broadcasting Jackson's fleeting nudity.  Both the FCC's brief and its supplemental brief are available; its supplemental letter is available; and its second supplemental brief is available.

Finally, we await a decision by the Second Circuit in the case of ABC, Inc. v. FCC, which was argued in February 2009.  That case presents a challenge to the FCC's finding of an indecency violation for broadcast of nudity during an episode of the television show NYPD Blue.  Here you can find the FCC's brief in this case and its supplemental brief.

LEC-CMRS Interconnection.  The D.C. Circuit recently heard oral argument in MetroPCS Calif., Inc. v. FCC, No. 10-1003.  This case involves a dispute in which a competitive local exchange carrier that handles only incoming calls bound for chat lines (North County Communications) has sought compensation for completing such calls that originated on the network of a cellular carrier (MetroPCS California).  Because all the traffic at issue was "intrastate" – that is, the calls originated and terminated within California and did not cross state borders – the FCC ruled that the California Public Utilities Commission should set the rate North County may charge MetroPCS for completing the calls to the chat lines.  MetroPCS contends that the FCC, not the state regulatory commission, should establish the rate.  We expect the court's decision in the next few months, perhaps before the end of the year.  The FCC's brief in this case is available.

Upcoming Cases.  Over the next three months, the FCC will file briefs or present oral argument in support of its decisions in a number of cases, including the following:

  • A First Amendment challenge to a provision of the Communications Act that bars a non-commercial educational television station from broadcasting promotional advertisements.  (Minority Television Project, Inc. v. FCC, No. 09-173111 (9th Cir., argument scheduled for Nov. 1, 2010) (to be argued by the Justice Department)).  The brief for the United States and the FCC is available.
  • A challenge to an FCC order establishing interim rates for providers of Video Relay Service.  (Sorenson Communications, Inc. v. FCC, No. 10-9536 (10th Cir., FCC's brief due Nov. 8, 2010)).
  • A challenge to an FCC order permanently transferring three toll-free suicide hotline numbers from a private nonprofit entity to a component of the U.S. Department of Health and Human Services.  (Kristin Brooks Hope Center v. FCC, No. 09-1310 (D.C. Cir., argument scheduled for Nov. 9, 2010)).  The FCC's brief in this case is available.
  • A challenge to an FCC order concluding that an exclusive distribution agreement between a cable operator and a terrestrially-delivered cable-owned network may constitute an unfair method of competition in violation of the Communications Act.  (Cablevision Sys. Corp. v. FCC, No. 10-1062 (D.C. Cir., FCC's brief due Nov. 18, 2010)).
  • A challenge to an FCC order denying Alpine PCS, Inc.'s request for a waiver of the FCC's automatic license cancellation rule, when Alpine defaulted on its installment payments for wireless licenses it won at auction.  (Alpine PCS, Inc. v. FCC, No. 10-1020 (D.C. Cir., argument scheduled for Dec. 3, 2010)).  The FCC's brief in this case is available.
  • A challenge to FCC orders denying a complaint filed by Staton Holdings, Inc. against MCI concerning the reassignment of a toll-free number from Staton to a third party.  (Staton Holdings, Inc. v. FCC, No. 10-116 (D.C. Cir., FCC's brief due Dec. 10, 2010)).
  • A challenge to an FCC order consenting to the involuntary transfer of nine radio station licenses to a state court-appointed receiver.  (Cherry v. FCC, No. 10-1151 (D.C. Cir., FCC's brief due Dec. 20, 2010)).
  • A challenge to an FCC order interpreting a provision of the Communications Act that requires state and local governments to act "within a reasonable time" on siting applications for facilities used to provide wireless communications services.  (City of Arlington, Texas v. FCC, No. 10-60039 (5th Cir., FCC's brief due Dec. 23, 2010)).
  • A challenge to an FCC order denying Qwest Corporation's petition that the FCC forbear from enforcing certain network element unbundling requirements and certain dominant carrier regulatory obligations against Qwest in the Phoenix area.  (Qwest Corp. v. FCC, No. 10-9543 (10th Cir, FCC's brief due Jan. 10, 2011)).
  • A challenge to an FCC order concerning the grant of certain applications to operate Automated Maritime Telecommunications Service stations in various locations of the United States.  (Havens v. FCC, No. 02-1359 (D.C. Cir., FCC's brief due Jan. 20, 2011)).

As the above discussion shows, unlike baseball, litigation challenging the FCC's decisions never ends.  So stay tuned for the next edition of "On Deck" – perhaps when pitchers and catchers report to spring training early in 2011 and help chase away those winter blues.  Who knows, maybe the Washington Nationals will finally have a winning season next year.  In baseball, as in appellate litigation, "Hope springs eternal…."

Posted in Office of General Counsel
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Do Corporations Have "Personal Privacy" Rights?

Posted September 30th, 2010 by Michael Krasnow

On Tuesday, September 28th, the Supreme Court granted the request of the FCC and the Justice Department to hear the case of Federal Communications Commission v. AT&T, Inc., No. 09-1279.  The case involves the Freedom of Information Act (commonly known as the "FOIA"), the federal law that permits the public to request and obtain copies of records from the United States Government.  In general, the law requires that federal agencies release the requested records unless they are covered by one or more of the FOIA's statutory exemptions.

The AT&T case involves FOIA Exemption 7(C).  That provision exempts from mandatory public disclosure records or information compiled for law enforcement purposes, when disclosure could reasonably be expected to constitute an unwarranted invasion of "personal privacy."  The question presented is whether Exemption 7(C)'s protection for "personal privacy" protects corporations like AT&T in addition to individuals (who clearly are covered).  A federal appeals court in Philadelphia held that corporations can have protected "personal privacy" interests under Exemption 7(C).  The Supreme Court agreed to take the case to review that decision.

Briefs in the case will be due the end of the year, oral argument likely will be heard early in 2011, and the Supreme Court should issue its decision by June 2011.  For more background on this case, please see our post dated June 22, 2010, as well as the official webpage of the FCC's Office of General Counsel.

Posted in Office of General Counsel
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Demystifying Primary Jurisdiction Referrals

Posted July 29th, 2010 by Richard Welch

Most people who work in the area of communications law and policy have heard the term "primary jurisdiction referral."  But myths and misconceptions abound, and they are shared by litigants, lawyers, and even judges.  This post is intended to clear up some of the confusion.

In the communications law context, a primary jurisdiction referral typically occurs when private litigants raise an issue in court (most often a federal district court) that involves a contested interpretation of the Communications Act, the FCC's rules, or an FCC order – in other words, a dispute over an issue that the Commission has the congressionally delegated authority to resolve.  In most instances, the dispute also lies within the court's subject matter jurisdiction.  Nevertheless, the court, recognizing that the FCC also has jurisdiction over the matter and may be better suited to answer the particular issue in the first instance, may elect to invoke the doctrine of primary jurisdiction and stay its hand to permit the FCC to decide the issue.

Here is where the confusion begins.  The term "primary jurisdiction referral" is a misnomer – the court refers nothing to the FCC.  Rather, the court will stay – that is, suspend action on – the judicial proceeding (or dismiss the case without prejudice) and direct the litigants to initiate an administrative proceeding before the FCC seeking resolution of the particular issue.  Thus, the parties to the litigation – not the court – must take affirmative steps to effectuate a primary jurisdiction "referral" to the FCC.

What action must the parties take once the court has invoked the primary jurisdiction doctrine?  What pleadings must they file at the FCC?  Many – perhaps most – primary jurisdiction referrals involve allegations of unlawful conduct by common carriers.  In such circumstances, we strongly encourage the parties to contact the Market Disputes Resolution Division of the FCC's Enforcement Bureau at (202) 418-7330 prior to filing any pleadings with the agency.  See Public Notice, Primary Jurisdiction Referrals Involving Common Carriers, 15 FCC Rcd 22,449 (2000).  The staff of that division can discuss the issues with you and provide advice on whether the referral is best effectuated by filing a complaint against a common carrier under section 208 of the Communications Act, or a petition for declaratory ruling to terminate a controversy or remove uncertainty under section 1.2 of the FCC's rules.

After the Commission has issued an order addressing the issue(s) involved, what happens next?  Contrary to what one might think, the case does not return to the "referring" court to review the FCC's decision.  The federal circuit courts of appeals have exclusive jurisdiction to review final FCC orders – even one resulting from a primary jurisdiction referral.  Accordingly, an aggrieved party may seek review of the FCC's decision only in a federal circuit court of appeals.  Thus, even if the case does return to the "referring" court for further proceedings in the original litigation, that court has no jurisdiction to review the lawfulness of the FCC's order and must take the FCC's decision on the specific issue(s) involved as a binding statement of law.

Primary jurisdiction referrals to the FCC can be a useful tool in private litigation, and they can allow the agency to clarify unclear areas of communications law.  But it is important for litigants to understand what they are and how they relate to the underlying court case.

Posted in Office of General Counsel
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Vote to Adopt the Broadband Framework Notice of Inquiry

Posted June 17th, 2010 by Christopher Killion

At its public business meeting today, the FCC voted to adopt the Broadband Framework Notice of Inquiry (NOI). This NOI launches an open proceeding through which the agency will seek public comment on issues related to the future of broadband in America.

The NOI seeks input on the best legal framework to apply to broadband Internet services—such as cable modem and telephone company DSL services—in order to promote competition, innovation, and investment in broadband services; to protect consumers; and to implement important aspects of the National Broadband Plan.  A decision in April by the United States Court of Appeals for the District of Columbia Circuit in Comcast Corp. v. FCC raised serious questions about the Commission's ability to rely on its current legal framework—which treats broadband Internet service as solely an "information service"—when moving forward on these policy objectives.

The NOI asks questions about three approaches in particular, while also inviting new ideas.  First, the NOI seeks comment on how the Commission could most effectively perform its responsibilities within the current information service classification.  Second, the NOI asks for comment on the legal and practical consequences of classifying Internet connectivity as a "telecommunications service" to which all the requirements of Title II of the Communications Act (the provisions that apply to telephone-type services) would apply.  Finally, the NOI invites comment on a third way modeled on the successful "Regulatory Treatment of Mobile Services" set out in the Communications Act. Under this third way approach, the Commission would: (i) reaffirm that Internet information services should remain generally unregulated; (ii) identify the Internet connectivity service that is offered as part of wired broadband Internet service (and only this connectivity service) as a telecommunications service; and (iii) forbear under authority Congress provided in the Communications Act from applying all provisions of Title II other than the small number that are needed to implement fundamental universal service, competition, and consumer protection policies that have received broad support.

The NOI also seeks comment on the appropriate classification of wireless broadband Internet services, as well as on other discrete issues, including the states' role with respect to broadband Internet service.  The NOI does not contemplate a change in the Commission's treatment of, or authority over, Internet content, applications, or services.

The Broadband Framework NOI commences a thorough, objective examination of a topic that is being debated in the pages of the press, in the blogosphere, and at industry conferences.  We look forward to hearing your views.

Cross-posted from Blogband.

Posted in Office of General Counsel
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Does a Corporation Have "Personal Privacy"?

Posted June 2nd, 2010 by Michael Krasnow

Does a corporation have "personal privacy?"  The FCC didn't think so, but a recent decision by the U.S. Court of Appeals for the Third Circuit, AT&T v. Federal Communications Commission (No. 08-4024), says "yes" -- at least when a corporation tries to block a federal agency from releasing certain records concerning the corporation's potential wrongdoing under the Freedom of Information Act (commonly known as the "FOIA").

The FOIA is a federal law that permits the public to request and obtain copies of records from the United States Government.  In general, the law requires that federal agencies grant such requests and release the requested records unless the records at issue are covered by one or more of FOIA's statutory exemptions.  One of those exemptions, known as Exemption 7(C), protects from mandatory disclosure agency records or information that have been compiled for law enforcement purposes where the public disclosure of the records could reasonably be expected to constitute an unwarranted invasion of "personal privacy."

The Solicitor General, on behalf of the FCC and the United States, has petitioned the U.S. Supreme Court to review the Third Circuit's judgment in the AT&T case, arguing that corporations do not have "personal privacy" under Exemption 7(C). In the filing with the Supreme Court, the Solicitor General argued that "[t]he law ordinarily protects personal privacy to safeguard human dignity and preserve individual autonomy," concepts that "do not comfortably extend to a corporation, which exists only in contemplation of law as an artificial being, invisible [and] intangible."  This "new consideration of corporate personal privacy," the Solicitor General argued, will likely "result in the withholding of agency records to which the public should have access, including records documenting corporate malfeasance."

If the Supreme Court decides to hear the case, it would be briefed, argued, and decided during the Court's next Term, which runs from October 2010 until June 2011.

Posted in Office of General Counsel
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A Third-Way Legal Framework For Addressing The Comcast Dilemma

Posted May 6th, 2010 by Austin Schlick - General Counsel

When the D.C. Circuit issued its opinion in the Comcast/BitTorrent case, it was clear the decision could affect a significant number of important recommendations in the National Broadband Plan, the Commission's Open Internet proceeding, and other policy initiatives related to broadband.  In light of the uncertainty created by the decision, the Chairman asked me to investigate all of the options available to the Commission.  Other FCC staff and I have developed a proposal that we believe resolves the doubt created by the D.C. Circuit's opinion while providing a firm legal basis for the Commission's limited, but vital role with respect to broadband.  Whether, all things considered, the legal response to Comcast sketched out in our proposal is the best one for the Commission to adopt would be for the five FCC Commissioners to answer after public comment and private study.  In my judgment, it's a question worth asking.

Read more about the proposal here.

Read Chairman Genachowski's statement discussing his reasons for seeking comment on the proposal here.

[Cross-posted from Blogband]

Posted in Office of General Counsel National Broadband Plan
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FCC Reform of Procedures

Posted April 14th, 2010 by Austin Schlick - General Counsel

I'm pleased to report that the FCC has begun two formal proceedings on ways to reform its procedures.

The first Notice of Proposed Rulemaking proposes rule changes to make the Commission's decision-making processes more open, transparent, fair, and effective.  The major proposals in the Ex Parte NPRM include:

  • Requiring the public filing of a summary of every oral ex parte presentation
  • Requiring the filing of a notice that summarizes all data and arguments presented and allowing cross-references to earlier filings where appropriate
  • Establishing a preference for electronic filing of all notices of ex parte presentations
  • Requiring faster electronic filing (within four hours) of notices of permitted ex parte presentations made during the "Sunshine Period," which typically begins a week before a public Commission Meeting, for those items on the Meeting agenda
  • Starting the Sunshine Period prohibition on ex parte presentations at midnight after a Sunshine notice has issued to enhance predictability.

The Commission is asking for public comment on all these proposals.  In addition, the Commission is seeking comment on other topics, such as revisiting our current exceptions to the Sunshine Period prohibition on ex parte presentations, requiring disclosure of ownership or other information about organizations making filings at the Commission, sanctions and enforcement for violations of the ex parte rules, and how the ex parte rules should apply in the context of new media, such as this blog.

Second, the Commission adopted a Notice of Proposed Rulemaking that proposes some changes to our procedural and organizational rules.  The major proposals in this Procedures NPRM include:

  • Expanding the use of docketed proceedings and maximizing electronic filing through the Commission's improved Electronic Comment Filing System
  • Delegating authority to the staff to serve parties to FCC proceedings electronically
  • Delegating authority to bureau and office chiefs to dismiss or deny defective or repetitious reconsideration petitions that do not warrant consideration by the full Commission
  • Making our rules clear that when an FCC rule or order requires action by the Commission on a weekend or holiday, the action must be taken by the next business day
  • Adopting a default effective date for new rules when the FCC does not specify an effective date in the relevant rulemaking orders.

We look forward to receiving public input on all these proposals.  Because the Commission has begun formal proceedings on these matters, we are closing this blog to further public comment and are instead requesting that comments be filed directly in the Commission's formal record.  Brief comments on the Ex Parte NPRM can be filed at ECFS Express, and brief comments on the Procedures NPRM can be filed here.  Longer comments, including those with attachments, can be filed at ECFS and should refer to GC Docket No. 10-43 (Ex Parte NPRM) or GC Docket No. 10-44 (Procedures NPRM).  Comments are due on May 10, and reply comments are due on June 8.

Thank you for your interest in reforming the FCC.  Please let us know what you think of these proposals, and suggest some of your own.  We look forward to having you participate.

Posted in Office of General Counsel Reform - Rules And Processes
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Chief FOIA Officer Report Shows Great Progress in FCC FOIA Processing

Posted March 29th, 2010 by Larry Schecker - Special Counsel, Administrative Law Division, OGC

The newly-issued Chief FOIA Officer Report for the FCC demonstrates how the Commission is applying the President's and the Attorney General's guidance that the Freedom of Information Act is to be administered with a presumption of openness.  General Counsel Austin C. Schlick, the FCC's Chief FOIA Officer, led a review of the Commission's FOIA operations.  Key points reported by the Chief FOIA Officer include:

  • The huge amount of FCC records available through the Commission's website has resulted in a decline in the number of FOIA requests.
  • The reform of the FCC's websites, including reboot.fcc.gov and www.fcc.gov/data, will provide even more access to FCC records and data without filing a FOIA request.
  • The FCC was among the first agencies to accept and process FOIA requests electronically, and is planning to improve even further this process.
  • The FCC is processing FOIA requests more quickly.  The median time for processing FOIA requests thus far during FY 2010 has declined to 11 days from 20 days in FY 2009, and the average days to process requests has declined to less than 13 days in FY 2010 thus far from over 32 days in FY 2009.
  • There has been a decrease in the number of backlogged initial FOIA requests and FOIA applications for review, and the Commission is striving to eliminate FOIA backlogs.

Much credit for the smooth handling of the Commission's FOIA program can be given to members of the Office of Managing Director's Performance Evaluation and Records Management FOIA staff:  Shoko Hair (the FCC's FOIA Public Liaison), Patricia Quartey, and Benish Shah.  They ensure the FOIA requests received by the agency are quickly assigned to the proper Bureau or Office, send out acknowledgments of FOIA requests, and remind the FCC staff when deadlines are approaching.  They, along with the FCC staff throughout the agency that search for and review the records sought by the public, all while performing their other duties, are the unsung heroes of the FOIA program at the FCC and deserve all praise for their efforts.

The Chief FOIA Officer as always welcomes suggestions to help the FCC's FOIA program continue to operate successfully and to improve.

Posted in Office of General Counsel
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