Posted October 27th, 2010 by Richard Welch
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 July 29th, 2010 by Richard Welch
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 February 19th, 2010 by Richard Welch
First, on January 13th in New York City, the Second Circuit held oral argument in Fox Television Stations, Inc. v. FCC. The case presents a First Amendment attack on 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 separate live television awards shows. That case is on remand from the Supreme Court, which overturned the Second Circuit’s earlier judgment that the FCC had not adequately explained a change in its indecency enforcement policy. It likely will be several months before the court issues its opinion – but, whatever the outcome, the case is a potential candidate to head back to the Supreme Court before final resolution.
Similarly, on February 23rd (just a few weeks after this year’s Super Bowl), the Third Circuit will hear oral argument in Philadelphia in CBS Corp. v. FCC, another broadcast indecency case. 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. The Third Circuit previously found that the FCC had changed its policy without adequately explaining why, but this case also is on remand from the Supreme Court in light of the Supreme Court’s decision in Fox Television Stations, described above.
And we continue to await a decision in the case of ABC, Inc. v. FCC, a challenge to the FCC’s enforcement action for broadcast of nudity during an episode of the television show NYPD Blue. That case was argued before the Second Circuit almost exactly one year ago in February 2009.
First Amendment challenges seem to abound in the New Year and are not confined to the broadcast indecency context. A carriage dispute between a broadcast television station and certain cable systems may give the Supreme Court an opportunity to address a constitutional challenge to the “must carry” statute in Cablevision Systems Corp. v. FCC. Most recently, the FCC ruled that a broadcast station north of New York City should be included in that city’s television market area, thereby making the station eligible for mandatory carriage on Cablevision’s cable television systems on Long Island. On review, the Second Circuit rebuffed Cablevision’s challenges and affirmed the FCC’s order in its entirety. Cablevision has now asked the Supreme Court to review the Second Circuit’s judgment, chiefly on the ground that the must carry statute violates the First Amendment. As the schedule currently stands, the Solicitor General will file the government’s response on February 26th. The Supreme Court should announce whether it will accept the case on its docket later in the spring.
Heading down the Eastern Seaboard, the federal appeals court in Washington, D.C. – in yet another case captioned Cablevision Systems Corp. v. FCC – is considering a challenge to the Commission’s decision to extend the effective date of its program access rules. Those rules ban exclusive contracts between cable operators and cable-affiliated programming suppliers. Oral argument was held in September 2009; we may see an opinion from the court in the near future.
On January 8, 2010, the D.C. Circuit heard oral argument in Comcast Corp. v. FCC before a packed house. In that case, Comcast challenges an FCC order declaring that Comcast could not lawfully block its Internet access subscribers’ use of peer-to-peer applications such as BitTorrent. It likely will be several months before we see a decision in that high-profile case.
We also await a decision from the Third Circuit in Council Tree Communications, Inc. v. FCC. Council Tree challenges the FCC’s revised designated entity rules, which apply to persons seeking to bid at auction for spectrum licenses. The case was argued on December 1st of last year.
And finally, for those of you who have recently struggled with the winter weather here on the East Coast, let me try to ease your pain by reference to baseball – after all, this space is entitled “On Deck.” Spring training is nigh! It’s time for pitchers and catchers to report! And Opening Day – when the spirit is lifted and life begins anew – is less than six weeks away!
