Duke Energy’s argument the FCC lacks jurisdiction over the pole attachment rates utilities charge incumbent local exchange carriers like AT&T “is barred by principles of issue preclusion,” said the commission’s final redacted public reply brief, dated Thursday and docketed Friday (docket 22-2220) in the 4th U.S. Circuit Court of Appeals, in opposition to the Duke and AT&T petitions for review of the agency’s 2018 order (see 2212290050).

Meta removed a pro se fraud complaint Thursday to U.S. District Court for New Jersey from the Superior Court of Essex County, New Jersey, brought by a plaintiff who opted out of the $725 million Facebook, Inc. Consumer Privacy User Litigation. Deciding the settlement was “inadequate,” plaintiff Aakash Dalal “timely opted out” of the settlement by certified and regular U.S. mail to the settlement administrator “requesting exclusion from the class action," said his June 19 complaint (docket 2:23-cv-13558).

Arkansas Attorney General Tim Griffin (R) is “disappointed” in Thursday’s ruling by U.S. District Judge Timothy Brooks for Arkansas in Fayetteville, granting NetChoice its preliminary injunction to block Griffin’s enforcement of SB-396, the state’s age-verification Social Media Safety Act (see 2308310068), emailed Griffin through a spokesperson Friday. NetChoice won the injunction just hours before SB-396 was to take effect early Friday.

Defendant Diamond Resorts seeks a Sept. 27 hearing on its motion to compel plaintiff Paul Sapan’s Telephone Consumer Protection Act claims to arbitration, said Diamond’s notice of that motion Wednesday (docket 8:23-cv-00147) in U.S. District Court for Central California in Santa Ana.

The FCC released a draft Further NPRM on the long-awaited 5G Fund Thursday, with commissioners scheduled to vote Sept. 21 (see 2308300062). Also on the agenda is a Space Bureau “transparency initiative,” with the bureau giving more guidance at initial application stages. Per the draft order and accompanying Further NPRM, the streamlining proposal is to be the first in a series of intended improvements to the Space Bureau. Chairwoman Jessica Rosenworcel also is seeking a vote on an additional action targeting VoIP robocalls.

Groups representing incumbent licensees in the 6 GHz band, led by electric utilities, asked the FCC to seek comment on any revised rules for the band, “consistent with the Administrative Procedure Act,” before issuing an order as expected later this year (see 2308070060). “The Commission may not adopt rules which were not proposed” in the 2020 Further NPRM “or otherwise considered in this proceeding,” said a filing posted Wednesday in docket 18-295: “Actual notice of any new rules must come from the Commission and not from monitoring comments in the record. Although the Commission may adopt rules that are the logical outgrowth of those that were proposed, it must provide fair and sufficient notice, including about the material components of such a rule.” The opportunity for comment is “particularly vital where, as here, the matter involves complex technical issues and a modification of the proposed rule results in a substantial change affecting the technical issues under consideration,” the groups said. The filing was signed by the Utilities Technology Council, the Edison Electric Institute, the National Rural Electric Cooperative Association, APCO and the Enterprise Wireless Alliance. AT&T also weighed in, raising concerns about very-low-power operations in the band, a focus of the FNPRM. Advocates “continue to assert as gospel various technical theories that are subject to considerable debate on the record, to urge the Commission to rely on their self-interested, curated summaries of simulations that remain unfiled and undocumented, and to extrapolate insignificant results to broad assertions of interference protection,” AT&T said: “In the face of substantial real-world testing demonstrating the potential for interference, the Commission should not rely on unfiled, untested, and undocumented assertions for decisions that could impact critical radio communications infrastructure.”

NTIA expects that 90% of broadband equity, access and deployment (BEAD) equipment spending will go for American-made equipment and materials, said NTIA Office of Internet Connectivity and Growth (OICG) Policy Advisor Will Arbuckle Wednesday in an FTI Consulting webinar. That expectation stems from an NTIA analysis of the availability of American-made items and from numerous companies announcing capacity expansion, he said. "We don't think we are done," with more companies announcing manufacturing expansions to fill BEAD made-in-America demand, he said.

Representatives of the Open Technology Institute at New America and Public Knowledge spoke with an aide to FCC Chairwoman Jessica Rosenworcel, urging the agency to complete work on issues raised in a 2020 Further NPRM on the 6 GHz band (see 2004230059). “We urged the Commission to finalize the two key issues that remain pending in the 6 GHz FNPRM in a robust way that avoids the risk of creating a new ‘Wi-Fi digital divide,’” said a filing posted Tuesday in docket 19-295: “Both the authorization of Very Low Power (VLP) devices and higher power for indoor-only use (LPI) are particularly crucial for digital equity and inclusion, for continued U.S. leadership in next generation Wi-Fi, and for virtually all consumers, businesses and community anchor institutions.” The groups led a recent letter to Rosenworcel raising those concerns (see 2308030061). Southern Co. representatives, meanwhile, raised concerns in a call with an aide to Commissioner Nathan Simington. “To the extent the Commission may be moving forward to expand unlicensed use of the 6 GHz band to include VLP operations, it must first put the details of its proposals out for public comment to receive necessary input and information from stakeholders and to comport with the requirements of the Administrative Procedure Act,” they said.

OpenAI will move to dismiss counts II-VI of a copyright infringement complaint, at a hearing Dec. 7 or soon thereafter, said a Monday notice (docket 4:23-cv-03223) in U.S. District Court for Northern California in San Francisco. The notice and memorandum of points and authorities in support of the motion to dismiss address claims brought by authors Paul Tremblay, Sarah Silverman, Christopher Golden and Richard Kadrey.

U.S. District Judge Jacqueline Scott Corley’s July decision to deny the FTC a preliminary injunction to block Microsoft’s acquisition of video game company Activision was “riddled with errors and should be reversed,” said the FTC’s opening brief before the 9th Circuit U.S. Court of Appeals Monday. Microsoft announced the agreement to buy Activision for $68.7 billion in January 2022.