Tuesday’s videoconference on AT&T’s proposed settlement with the town of Heath, Massachusetts, over the installation of a cell tower (see 2212060027) is unusual for the specificity of detail disclosed in the settlement agreement. AT&T’s October 2021 complaint arose out of Heath’s denial of AT&T’s application for a special permit and zoning relief for construction of its wireless facility. The parties reached a settlement nearly a year ago, but the court rejected it, saying AT&T and Heath failed to provide the evidentiary basis on which to evaluate the merits of the resolution. The newest agreement, whose terms were disclosed in a Nov. 30 joint motion for judgment (docket 3:21-cv-30106), calls for the height of the proposed tower to be reduced by 60 feet to 120 feet, then immediately raised by 20 feet in compliance with the Spectrum Act and “associated” FCC regulations. Ten resident property owners, admitted to the case as intervenors, approved the “one-time height extension,” said the document. Under the proposed settlement, AT&T will make tower space available free of charge to Heath’s public safety agencies, situating that space to avoid interfering with AT&T’s space on the tower and “colocation space for other FCC-licensed carriers,” it said. AT&T agreed to reimburse the town for “its actual and reasonable” consultant fees, to a maximum of $2,500, said the proposed agreement. AT&T also agreed to install “sound attenuating material” at the tower site, and to paint the tower, antennas and other attached equipment brown, it said.
A Chinese freight forwarder asked the Federal Maritime Commission to dismiss an October complaint from a U.S. distributor accusing the forwarder of illegally trying to change the terms of a signed service contract and purposefully delaying 20 container shipments in order to submit higher detention and demurrage invoices (see 2210250021).
The Free State Foundation and the Information Technology and Innovation Foundation applauded Tuesday's unanimous decision by the U.S. Court of Appeals for the D.C. Circuit in Green v. U.S. for upholding the constitutionality of the anticircumvention provisions in Section 1201 of the Digital Millennium Copyright Act. The two plaintiffs in Green wanted to publish works or create and sell devices intended to bypass security measures for accessing copyrighted works. They raised pre-enforcement First Amendment challenges to Section 1201, claiming the law is a facially overbroad restriction on protected speech and its application would unconstitutionally restrict their rights to engage in their projects relating to the bypassing of "technological protection measures.” The question before the court was whether the DMCA “is likely to violate the First Amendment rights of two individuals who write computer code designed to circumvent those measures,” said the D.C. Circuit opinion (docket 21-5195). “The district court answered no, and we agree.” The D.C. Circuit “was absolutely right to reject the flimsy First Amendment claims raised in Green,” Seth Cooper, FSF director-policy studies and senior fellow, blogged Wednesday. Constitutionally protected free speech “is an indispensable part of American freedom,” but those bedrock rights “were nowhere jeopardized by Section 1201,” he said: “The case was not a close call.” The decision was “an important vindication of copyright owners' right to exercise control over who can access their valuable creative content,” said Cooper. The ITIF agrees the court “reached the right decision” because the public “does not have a right to circumvent subscription-based platforms to gain unfettered access to creators’ works free of charge,” said Senior Analyst Jaci McDole Tuesday. The Constitution “provides creators intellectual property rights for a reason,” she said. “Creators’ livelihoods depend on controlling how their works are distributed and sold. It’s welcome news that the court upheld those constitutional rights in the Green case.”
The Bureau of Industry and Security this week renewed the temporary denial order (TDO) for three U.S. companies for their involvement in illegally exported technical drawings and blueprints to China (see 2206080068). The order, issued in June, was renewed for another 180 days, BIS said Dec. 5, partly because the agency found possible evidence of additional export violations.
A Chinese freight forwarder asked the Federal Maritime Commission to dismiss an October complaint from a U.S. distributor accusing the forwarder of illegally trying to change the terms of a signed service contract and purposefully delaying 20 container shipments in order to submit higher detention and demurrage invoices (see 2210250021).
Language from the Journalism Competition and Preservation Act (S-673) didn’t make it into a compromise version of the FY 2023 National Defense Authorization Act released Tuesday, after a wave of criticism from the bill’s opponents (see 2212050067). The House was expected to vote on the revised NDAA, filed as an amendment to shell bill HR-7776, as soon as Wednesday night. The broadcasting industry, which backs JCPA, faced a potential second legislative hit Wednesday at a House Judiciary Committee markup of the American Music Fairness Act (HR-4130), which NAB opposes (see 2202090053).
Karima Holmes won’t return as 911 director for the District of Columbia’s Office of Unified Communications (OUC). Mayor Muriel Bowser (D) withdrew the controversial nomination Monday after D.C. Council members signaled they would reject confirmation. Bowser, Holmes and others fought to save the nomination before a Tuesday D.C. Council vote. Withdrawal was “overdue," D.C. 4B01 Advisory Neighborhood Commissioner Evan Yeats said in an interview: "We wasted a lot of time and energy on this fight that could have been invested in improving OUC."
A three-judge panel on the 5th U.S. Circuit Court of Appeals in New Orleans questioned the procedure of Consumers’ Research’s challenge of the FCC’s method for funding the Universal Service Fund under the nondelegation doctrine, during oral argument Monday. Judges also pressed the FCC on whether Congress should be tasked with setting specific funding limitations and how the FCC reviews the quarterly contribution factor calculations made by the Universal Service Administrative Co.
DOJ briefs in the massive Section 301 litigation don't demonstrate that the Office of the U.S. Trade Representative considered "major objections contemporaneously with its decisions" to impose the lists 3 and 4A tariffs, the plaintiffs argued in a Dec. 5 reply brief at the Court of International Trade. While USTR relies on presidential direction as the post hoc justification of its decisions, the court already ruled that out as a means of satisfying the Administrative Procedure Act, the brief said. To now satisfy the APA, the U.S. may take new action, but the lists 3 and 4A tariffs may not stay in place based on "conclusory and post hoc rationales," the plaintiffs said (In Re Section 301 Cases, CIT #21-00052).
The U.S. Chamber of Commerce plans to challenge a federal court decision tossing businesses’ challenge to the Maryland digital ad tax’s pass-through ban, the Chamber said Monday. At oral argument last week, U.S. District Court for Northern Maryland Judge Lydia Kay Griggsby signaled she would dismiss without prejudice due to a state court striking down the tax as unconstitutional. In the Friday opinion, Griggsby also denied as moot Maryland’s motion to dismiss and plaintiff U.S. Chamber of Commerce’s motion for summary judgment.