Cases in the Federal Appellate Courts
Prometheus Radio Project v. FCC, 3d Cir. No. 18-1092 et al. Appeal of Federal Communications Commission’s (FCC) order eliminating and relaxing limits on common ownership of local broadcast stations.
Representing Prometheus Radio Project and other public interest organizations, the clinic has successfully challenged FCC decisions to relax broadcast ownership limits dating back to 2004. Most recently, in December 2017, the FCC granted reconsideration of it prior decision in the 2014 Quadrennial Review that ownership rules remained necessary in the public interest. The reconsideration order eliminated the newspaper/broadcast cross-ownership and radio/television cross-ownership rules and substantially relaxed the local television ownership rules.
In January 2018, the clinic filed an Emergency Petition for a Writ of Mandamus asking the court to stay the effect of the new decision until the court had reviewed the FCC’s decisions. The court denied mandamus, but stayed the appeals until August 2018 to give the FCC the opportunity to adopt an “incubator” program that the FCC believed would diversify station ownership. In August 2018, the FCC adopted an incubator program. Thus, the court is likely to set the pending appeals for briefing in the fall 2018.
Free Press v. FCC, Cir. No. 17-1129 et al. Challenging the Federal Communications Commission’s (FCC) decision to allow increased consolidation in television station ownership.
The clinic represented Free Press and others challenging an FCC decision to reinstate an obsolete rule known as the “UHF discount.” The effect of reinstating the UHF discount was to increase consolidation in the national television market. Clinic students worked on the brief and reply brief and attended the oral argument by Andrew Jay Schwartzman in April 2018. Unfortunately, in August 2018, the court rejected a supplemental filing on standing and dismissed the appeal, finding that petitioners had failed to demonstrate standing at the earliest opportunity, as required by a court rule.
United Keetoowah Band of Cherokee Indians in Oklahoma v. FCC, D.C. Cir. No. 18-1129. Appeal of Federal Communications Commission’s (FCC) decision to exempt deployment of small cells used to provide 5G from environmental and historic preservation review.
The clinic is representing the National Association of Tribal Historic Preservation Officers (NATHPO), which intervened in support of the Petitioners who are Native American Tribes and environmental organizations. The appeal challenges an FCC’s decision that removes a broad category of telecommunications deployments from historical and environmental review and severely limits the ability of Tribal historic preservation officers to collect consulting fees. The grounds for appeal include that the FCC’s action violates the National Historic Preservation Act and is inconsistent with the FCC’s obligation to engage in government-to-government consultation with Tribes.
Securus Technologies, Inc., v. FCC, DC Cir. No.16-1321. Supporting Federal Communications Commission (FCC) rules designed to lower the costs of prison phone calls.
In prisons across the country, phone service is typically provided by a single inmate calling service (“ICS”) provider. Because inmates have no choice but to use the monopoly provider, ICS providers can charge extremely high rates and impose numerous fees, which are primarily borne by inmates’ families. In 2013, Martha Wright, a grandmother from Washington, D.C., and others (“Wright Petitioners’) asked the FCC to address these exorbitant calling rates in 2003. The FCC took no action until 2013, however, when it capped charges for calls between different states.
After some ICS providers and states challenged the FCC’s decision, the clinic was asked to represent the Wright Petitioners in the court proceeding. The clinic filed a brief on behalf of the Wright Petitioners supporting the FCC. Before the case was argued, however, the FCC asked the Court to hold it in abeyance while it considered a further order to lower the cost of calls within a single state.
When this second order came out in 2015, ICS providers and states appealed again. They challenged the validity of the specific regulations, as well as the FCC’s authority to regulate intrastate rates under any circumstances. The clinic again filed a brief for the Wright Petitioners in support of the FCC.’s regulation. The case was set for oral argument on February 6, 2017.
Shortly before the oral argument, the FCC’s Deputy General Counsel represented in a letter to the court that a majority of the Commission no longer supported all of the issues as briefed. As a result, Benton Senior Counsel Andrew Jay Schwartzman presented oral argument defending the FCC’s authority to regulate interstate rates. In June 2017, a divided panel struck down FCC regulations. The clinic sought rehearing on the ground that the panel erred in refusing to afford Chevron deference to the FCC’s validly-adopted order because FCC counsel would not defend it. In October 2017, rehearing was denied.
Nueva Esparanza, Inc. v. FCC, D.C. Cir. No. 15-1500. Defending the Federal Communications Commission’s (FCC) award of a license for a low power noncommercial radio station in Philadelphia.
Several years ago, the clinic worked with the Prometheus Radio Project to assist applicants for low power radio stations (LPFMs). LPFMs are available only to nonprofit organizations and can serve only a small area (approximately 3-5 miles). Because the FCC received many more applications than could be granted, it developed a point system to choose among competing applications.
The clinic worked with G-town Radio, which successfully obtain a construction permit for a low power station in Philadelphia by joining with other applicants to operate the station pursuant to a “time share” agreement. Nueva Esparanza, Inc., an unsuccessful applicant, challenged the FCC’s decision in the D.C. Circuit. The clinic drafted a brief for G-town Radio supporting the FCC’s decision. In July 2017, the Court upheld the FCC’s decision.
State of New York v. Charter Communications, Inc., N.Y. Supreme Court, Appellate Division—First Department, No. 450318/17. Amicus Brief in New York’s proceeding against an Internet Service Provider for misrepresenting broadband speeds in advertising.
The clinic represented Consumers Union, the advocacy division of Consumer Reports, as amicus curiae in a case brought by the N.Y. Attorney General’s Office (“NYAG”) against Charter Communications (“Charter”). The NYAG alleged that Charter’s ads misrepresented the broadband speeds that customers could achieve using Charter’s service. Charter alleged that the Federal Communications Commission’s (FCC) “transparency” rule preempted states from bringing misrepresentation claims against internet service providers (“ISPs”) that followed the FCC’s rules. The trial court disagreed, and Charter sought review. The amicus brief for Consumers Union filed in April 2018 set forth the history of the FCC’s transparency rule and argued that the FCC never intended to preempt states from holding ISPs accountable when they misrepresented their services to consumers. It also argued that preempting state consumer protection requirements would deny consumers accurate information they need to make choices regarding their broadband provider. The appellant court in June 2018 affirmed the lower court and held that the “Transparency Rule does not preempt state laws that prevent fraud, deception and false advertising.”