Tag Archives: Supreme Court

Another Challenge to FCC Authority

There is a new legal challenge that could alter the way that the FCC and other federal agencies regulate industries. The issue was highlighted in an article by John Eggerton in Multichannel News.

The Supreme Court has agreed to hear the case of Relentless Inc. et al v. Department of Commerce, et al. The specifics of the case are about the ability of the National Oceanic and Atmospheric Administration (NOAA) to regulate fishing. Specifically, fishermen have to pay for the cost of having NOA monitor their herring catches. There is a lot of speculation that the Court is open to weakening the ability of regulatory agencies to make new regulations.

This may sound like is not relevant to the FCC, but the case could impact all federal agencies that enact regulations that have not been specified by Congress. Agencies feel empowered to make regulatory rulings based on the Chevron doctrine. This doctrine comes from a strong ruling by the Supreme Court in 1984 in the case of Chevron U.S.A., Inc. v. Natural Resources Council, Inc. The lawsuit involved a challenge from Chevron that challenged the ability of the government to create and enact environmental rules that were not specifically ordered by Congress. Chevron also comes into play whenever there are conflicting laws from Congress – agencies get to interpret any conflicts.

Chevron is considered a landmark case where the Supreme Court gave substantial deference to the ability of government agencies to enact regulations. The Supreme Court ruling looked specifically at cases where agencies enact regulations that were not specified by Congress. The Court, in Chevron, looked instead at the intent of Congress when it gave agencies the power to enact regulations. A simplified explanation of Chevron is that the Court ruled that regulators are allowed to regulate as long as agencies stay within the overall framework of responsibilities given to them by Congress when the agency was created.

The Chevron doctrine has already been used by the Supreme Court related to the FCC in the 2005 case of NCTA v. Brand X Internet Services. The Court relied on the Chevron doctrine in ruling that the FCC had the authority to classify broadband as an information service that is not subject to common carrier regulation. This same ruling was used as subsequent FCCs reimposed Title II regulation and then reverse that decision a second time.

The issue is certainly going to arise again if FCC Chairwoman Jessica Rosenworcel goes through with her recently announced intention to reclassify broadband as a telecommunications service. The reason that Chevron was needed in the 2004 Brand X case is that Congress has been moot on the topic of regulating broadband. The last major related ruling from Congress was the Telecommunications Act of 1996, which preceded the explosion of the Internet. While there have been attempted bills introduced in Congress over the years to formally regulate broadband, Congress has apparently never had the necessary votes to enact broadband regulation.

Overturning Chevron would result in regulatory chaos since every regulatory agency makes rules that are not specifically spelled out by Congress. This would mean lawsuits challenging both new rulings by regulatory agencies but also older decisions. This also will likely results in the confusion that will come when courts issue conflicting opinions on the same topic.

Ending Chevron would mean that regulatory agencies will lose more court fights concerning new regulations, making it harder to create or modify regulations. Chaos will also abound since challenges to new regulations will result in a long delay as regulations are argued in court. This could mean a lot more delays, and for a longer time, for any new regulations not specifically required by Congress. Of course, Congress could avoid all of this by enacting explicit laws for regulations it cares about – but I don’t think anybody expects that.

Supreme Court to Rule on Internet Threats

Scales-Of-Justice-12987500-300x300Yesterday the Supreme Court took oral arguments on the issue of Internet threats. Specifically, they are being asked to decide is if there is a legal line to define where something posted on the Internet can be perceived as an illegal threat.

The specific case being heard is Elonis v. United States. In the case Anthony Elonis was convicted of writing graphic fantasies about killing his wife and other women he knows on Facebook. Elonis argues that his posts were meant as rap music lyrics and that the court should view them using a subjective intent standard, meaning they should look at how they were intended. The original prosecutors thought that the court should look at an objective standard, meaning that they should look at whether a reasonable person would perceive what was written as a threat.

This is a difficult thing for courts in general to interpret. There has been centuries of case law based upon verbal threats where the tone and actions of the person making the threats could be taken into consideration. But it’s difficult to understand the tone, context or intent of something written online.

In judging if the standard should be objective the Court has the difficult task of defining a “reasonable person”. Language that might shock somebody’s grandmother might be very normal for teenagers. We live in a world with extreme subcultures. Groups like rappers, skinheads, white supremacists and even war gamers use language within their sub-culture that might be shocking to anybody else. Should people in these subcultures be prosecuted for using language that is different than the societal norm?

The case happens to be very timely because there is a lot of discussion currently about Internet threats. For example, there has been a lot of coverage of ‘gamergate’ where male war gamers have been harassing and making threats against women who say that the gaming culture is too sexist. And there are numerous cases of on-line bullying where kids are harassed in the net.

The outcome of this case has implications for both the police and for ISPs. If the Supreme Court takes the side of the government in the case they could be opening up the floodgates for prosecutors arresting people for what they say on the Internet.

In this particular case Elonis comes across as an unsavory character. The on-line postings began immediately after he split with his wife. He then harassed a coworker and got fired. The final postings that got him arrested talked about killing a female FBI agent who had questioned him about his postings about shooting up an elementary school.

It certainly appears that Mr. Alonis has a lot of issues. But when the Supreme Court chooses between judging him with a subjective or objective standard they will be giving guidance for how other on-line speech should be treated. We are all aware of the phenomenon where people on-line tend to be more aggressive and say thing that they would never say in person. There is something about the anonymity of sitting at a keyboard that lets people go farther with speech than they normally would. But should people go to jail for saying something outrageous on the Internet?

There is also an implication in this for ISPs. ISPs are often the first party contacted when somebody is threatened on-line. ISPs have a wide range of responses to such requests. Some do nothing and tell people to contact law enforcement. Others will take action and ban a customer who is harassing somebody else. So ISPs ought to pay attention to this ruling to make sure that you understand if there is going to be a change in the national standard for on-line harassment.

There are many in the country who don’t entirely trust law enforcement to be even-handed. One can envision indictments against what people write on the Internet as an easy way for the police to harass somebody. There certainly is a debate raging in the country about how far a police force ought to be able to go with using military might or in shooting suspects.

But on the flip side there is a lot of on-line harassment. But there is also a lot of real life harassment that people don’t get normally prosecuted for. I’m sure many of you saw a recent video of a woman who was the subject of multiple catcalls and lewd statements as she walked down city streets.

Our society seems to be reassessing what we find acceptable as normal behavior. Laws often change as a reaction to a change in societal norms. We certainly had times in our past where it was unacceptable to assail women in the street. But we are now at the other extreme and it would not be unusual for the pendulum to swing back the other way towards less permissiveness.

There probably is nothing harder to deal with in the Country than our first amendment speech rights. Courts have usually protected free speech even when it’s vile and not the norm. But we also know that threats of any kind often turn into later actions, and this court is being asked to figure out a national policy on a very tough issue.

It’s All Up to the Courts

Seal of the United States Court of Appeals for...

Seal of the United States Court of Appeals for the Second Circuit. (Photo credit: Wikipedia)

As often happens with many controversial topics in our society, the fates of Aereo and its clone FilmOn X are now in the courts. These companies supply antenna receivers to customers and let them receive live, local, over-the-air television from the local network affiliates of ABC, CBS, FOX and NBC on internet connected devices including TVs, tablets and smartphones. These companies are claiming that since the signal goes directly on a single antenna to only one customer that they don’t have any obligation to pay retransmission fees to the network affiliates for the programming.

Of course the large networks disagree vehemently with that interpretation and have sued the two companies. In April, Aereo won a suit in New York, which was then upheld later in July in the Second Circuit Court. The judge who ruled in the Aereo suit concentrated on the way that Aereo transmits the signal rather than rule on the issue of copyright infringement that was brought by the networks.

The networks also sued FilmOn X using the same arguments that they had used against Aereo. FilmOn X is an odd company in some ways because in the past it went by the names of Aereokiller and BarryDriller.com, both names that are a dig at Barry Diller, the founder of Aereo. In fact, there are conspiracy theories flying around the Internet that FilmOn X was secretly founded by the networks for the purposes of being sued and losing on the Aereo issue.

A week ago the District Court of Washington DC ruled against FilmOn X saying that the company had violated the copyrights of the networks. A week later the same court refused to accept an appeal on the issue. The suit puts an injunction on FilmOn X from operating.

So now there are two district courts with differing opinions on the same topic. The two courts heard essentially the same arguments and came to different conclusions. Generally the only way to resolve this kind of dichotomy is for the Supreme Court to hear the case and to resolve the issue.

But until then both companies are in legal limbo. Aereo came out this week and publicly advised FilmOn X to ignore the injunction. Aereo also made an effort to distinguish that its technology is different than that of FilmOn X, but the differences are subtle. Aereo continues to expand to new markets and continues to face additional lawsuits in each new market it enters.

As somebody on the sideline I really don’t know how I hope this case resolves. Part of me says that this suit is a result of the greed of the networks which are now pushing to get as much as $2 per month per subscriber in retransmission fees for each local channel. Everybody in the industry understands that we are starting to price cable TV service out of the range of a lot of households, and yet the networks and every other programmer keep pushing for higher and higher fees. As a whole the industry is laying the foundation of its own decline, and if the fees weren’t this high, then Aereo wouldn’t have a business plan.

But the other side of me says that the networks are right, at least under the current cable rules at the FCC. Of course, those rules were made in a very different time a few decades ago when nobody contemplated the ability for somebody to bypass the cable companies as Aereo has done. Certainly the FCC ought to take another look at cable regulations and update them to account for the realities of TV over the Internet.

But from what I understand, nothing is likely to happen since Washington is in gridlock. The FCC is not free to change the rules too much without authority from Congress, and there does not seem to be any impetus for Congress to look at the cable rules. So, like often happens when policy makers don’t make policy, it’s all up to the courts.

Supreme Court Backs FCC in Cell Tower Dispute

English: Antonin Scalia, Associate Justice of ...

English: Antonin Scalia, Associate Justice of the Supreme Court of the United States (Photo credit: Wikipedia)

On Monday the Supreme Court ruled in favor of the FCC in a dispute about rules concerning permits for new cellular towers. The Supreme Court ruling is here: Arlington vs. the FCC.

The dispute arose over the FCC’s interpretation of their powers. The Telecommunications Act of 1996 had granted some local rights for zoning and placement of cellular towers. But the Act also said that local jurisdictions had to act “within a reasonable amount of time” in acting on requests for new tower sites. The FCC got a number of complaints from cellular providers over the years that local jurisdictions were dragging their feet and not responding to requests for new towers. The FCC responded by issuing a ruling that local jurisdictions had to act within 90 days to process a collocation application to add to an existing tower and within 150 days for a request for placing a new cellular tower.

The City of Arlington, TX, joined by San Antonio, San Diego, Los Angeles and other cities then sued to block this regulation, making the argument that the FCC was overstepping its authority in making the ruling.

The Supreme Court ruled 6 – 3 in favor of the FCC with an opinion written by Justice Antonin Scalia. This leaves in place the Fifth Circuit’s ruling that the FCC was within its jurisdiction to issue these rules. The FCC original ruling had said that a local jurisdiction could not reject a cell tower application due to the presence of another carrier, and that it also had to act within the above-mentioned time frames.

There have been a number of disputes about the location of cell towers. People all want good cell service, but nobody seems to want a tower in their back yard (or within sight of their back yard). The original cell tower systems were designed for a very different world than what we live in today. The originally sited towers in many places are far apart and were designed to handle a far smaller volume of voice traffic. And the original siting of towers is not at all adequate for data coverage since the strength of the data signal from a tower decreases quickly as you get further from a tower. To make the cellular networks do what customers want today, cell phone companies have to build additional towers within the boundaries of the older towers to create smaller ‘cells’ around each tower site. Each ‘cell’ can serve the same number of voice and data customers, so with more ‘cells’ a cellular company can accommodate more customers and provide better coverage and faster data. This problem is just going to get worse as more and more people rely on data for their mobile devices and we need more and more cell sites.

Eventually in the future the large ‘big stick’ towers will probably go away and be replaced by numerous small cellular transmitters dispersed throughout a neighborhood. But a full transition to that kind of technology is at least several decades away. And even after that is introduced the existing tall towers will probably be kept in service for an additional decade or two simply because they work well.

The ruling will have only a minor impact on the cell phone industry. Cities will no longer be able to use administrative delays as a passive-aggressive tool to say no to a new cell tower. Cities will still have the power to say no to a request for a new tower as long as they do it within the FCC timeline.

The real impact of the ruling is that the Court has backed the FCC and other federal agencies in the way that the agencies make their rulings. Most of the Court’s discussion centered around a doctrine known as the Chevron doctrine. That has meant that whenever a Court has been asked whether a federal agency has interpreted a ruling from a federal agency the Court has first asked if the underlying law was clear, generally being some law passed by Congress. If the law was not clear, under the Chevron doctrine the Courts have then generally deferred to agency’s interpretations of the law and have found in the past that federal agencies had the authority to interpret ambiguity in the law.

The Cities in this case had argued that the deference that Courts had granted to federal agencies could not constitutionally apply if the agency had no authority to act at all. They argued that this interpretation of the law effectively gives federal agencies the ability to define their own powers. This ruling addresses that question and says that Chevron does not apply to jurisdictional questions about the authority of an agency to make rulings. The Court did concede that their ruling does not give an agency the right to regulate as it pleases and that Courts interpreting Chevron in the future must do so by “taking seriously, and applying rigorously, in all cases, statutory limits on agency authority.”

Justice Roberts, joined by Justices Alito and Kennedy, wrote a dissent and he argued that the jurisdictional test that the cities had proposed was correct and that federal agencies are widely overstepping their authority.

While the ruling doesn’t do much for the cell phone companies it is a victory for the FCC and other federal agencies. I don’t follow what goes on at too many other agencies, but it seems like almost every major decision made by the FCC in the last decade has been challenged in terms of the agency even having the authority to issue rules. This Court ruling bolsters the FCC’s ability to interpret their own authority within the bounds of the specific laws they are implementing. But it does not give them unlimited authority and they still must act reasonably. Courts will still be able to review complaints against the FCC and other agencies, but they will have to do so by applying the Chevron test.