To fulfill its “broad mandate” under the Infrastructure Investment and Jobs Act, the FCC in the digital discrimination order on review “adopted rules that prohibit practices with unjustified discriminatory effects on access to broadband service,” plus intentional discrimination, the commission’s brief said Tuesday (docket 24-1179) in the 8th U.S. Circuit Appeals Court.

House Democrats rang alarm bells Wednesday over the Appropriations Commerce, Justice, Science and Related Agencies (CJS) Subcommittee’s proposal reducing FY 2025 allocations for NTIA and other Commerce Department agencies. The subpanel advanced its FY25 bill on a voice vote Wednesday after Republicans defended the proposed cuts, including a significant slashing of annual funding for the DOJ Antitrust Division. Commerce Secretary Gina Raimondo fielded repeated questions during a House Innovation Subcommittee hearing Wednesday about Republicans’ claims that NTIA’s requirement that broadband equity, access and deployment (BEAD) program participants offer a low-cost connectivity option constitutes rate regulation.

FCC commissioners will vote July 18 on a notice seeking comment on uniform, industrywide handset unlocking requirements, as expected (see 2406250049), FCC Chairwoman Jessica Rosenworcel announced Wednesday in her Note from the FCC. Commissioners will also vote on a controversial proposal allowing schools and libraries to use E-rate support for off-premises Wi-Fi hot spots and wireless internet services, a plan to cut the cost of correctional institution phone rates and rules to improve video programming accessibility for the deaf and hard of hearing. Next-generation 911 rounds out the agenda.

MGM Resorts International’s complaint against the FTC for pre-enforcement declaratory relief fails “for lack of subject matter jurisdiction and for failure to state a claim for relief,” said the commission’s memorandum Monday (docket 1:24-cv-01066) in U.S. District Court for the District of Columbia in support of its motion to dismiss. The FTC’s April 1 order denying MGM's petition to quash a civil investigative demand (CID) “unlawfully deprives MGM of its rights under the Fifth Amendment,” alleges MGM’s April 15 complaint (see 2404160035).The CID requested information as part of a nonpublic investigation involving MGM's September data breach. The suit also seeks to disqualify FTC Chair Lina Khan's participation in the investigation. But the court lacks subject-matter jurisdiction over MGM’s claims because Congress set forth in the FTC Act “a comprehensive and exclusive scheme for judicial review of agency actions,” said the commission’s memorandum. Under that scheme, MGM may raise its claims in a court of appeals only following a final commission cease and desist order, or in the commission’s enforcement petition currently before the U.S. District Court for the District of Nevada, it said. MGM also fails “to invoke a cognizable cause of action or state a plausible claim for relief,” said the memorandum. The Declaratory Judgment Act doesn’t supply an independent cause of action, and the Administrative Procedure Act provides a cause to challenge only final agency actions, it said. “MGM challenges no such actions,” it said. “Nor does the Constitution provide a cause of action here,” it said. “Where Congress has provided adequate statutory means for a person’s claims and remedies concerning agency action, a duplicate constitutional cause of action that evades statutory limits and requirements may not be judicially implied,” it said. MGM’s complaint also fails to allege a plausible claim for relief, said the memorandum. Its claim that the FTC Chair Khan should be disqualified from this matter “ignores applicable legal standards and is grounded in an impermissibly tenuous allegation of potential bias,” it said. Khan happened to stay at an MGM hotel shortly after MGM’s most recent data breach “and needed to provide her credit card information on paper,” it said. But that “threadbare” allegation doesn’t support “a plausible claim for bias that would warrant disqualification,” it said. MGM similarly fails to state a claim with its attacks on the deadline and scope of the CID, said the memorandum. The claim of an unfairly short deadline ignores the CID’s original 30-day return date and the additional 47 days MGM gained while its petition to quash was pending before the commission, it said. It also fails to allege the FTC’s refusal to grant an extension, it said. In fact, when commission staff contacted MGM to discuss compliance issues such as timing, “MGM refused to engage in any such discussions,” it said. Likewise, MGM’s claim that the FTC has grounded the CID in “facially inapplicable” regulations “overlooks settled and binding authorities” holding that the commission “is entitled to investigate whether its regulations apply to particular entities or practices,” it said.

The California Public Utilities Commission on Thursday denied AT&T relief from carrier of last resort obligations, while opening a rulemaking to take a fresh look at COLR rules. Also at its meeting, the CPUC approved broadband grants, acted on enforcement items and set annual budgets for the California Advanced Service Fund (CASF) and state video franchise law.

Supporters of the FCC's expired affordable connectivity program acknowledge the Senate Commerce Committee’s impasse (see 2406180067) on the Spectrum and National Security Act (S-4207) may spur a reexamination of alternatives for addressing broadband pricing. This realization comes amid weakening odds that Congress can address ACP funding via a broader package aimed at restoring the FCC's lapsed airwaves sales authority. Lawmakers continue insisting a legislative solution is possible this year even though Senate Commerce’s cancellation of its planned Tuesday markup of S-4207 (see 2406170066) was its fourth pulling of the measure since early May. Other stakeholders are urging a shift to emphasizing nonlegislative solutions.

RCN Telecom Services and RCN of Massachusetts, in their May 13 motion to dismiss Screen Media Ventures’ Digital Millennium Copyright Act complaint (see 2405140031), don’t deny “the basic elements of liability” under the DMCA, said SMV's opposition brief Monday (docket 3:23-cv-23356) in U.S. District Court for New Jersey. SMV’s complaint alleges that RCN’s subscribers, or those using their subscriptions, use software such as BitTorrent to infringe SMV’s “exclusive rights of reproduction and distribution” (see 2312290005). The defendants also don’t deny receiving thousands of notices of infringement related to SMV’s and other rights’ holders works, nor do they deny failing to take any action to terminate known infringers from using RCN’s network “to perpetuate this mass infringement,” it said. They also don’t deny “having the means and control to easily prevent such activity, for which they are legally responsible,” it said. RCN “disingenuously argues” that because certain “unknown and unidentified hypothetical persons” who aren’t its subscribers could have used its services to infringe SMV’s works, the complaint doesn’t state a claim that the defendant’s subscribers infringed the plaintiff’s works, said the opposition. This “shot in the dark” attempt to raise factual issues to cast doubt on the sufficiency of allegations of direct copyright infringement is wrong “both procedurally and substantively,” it said. Procedurally, at the pleading stage, factual allegations are taken to be true, it said. Substantively, the issue is the use of RCN’s network and services “to commit acts of infringement known to RCN,” it said. Thus, SMV’s factual allegations that users with IP addresses belonging to the defendant infringed the plaintiff's works “must be taken as true and are well-pled,” it said. SMV’s further speculative allegations that some individuals who aren’t subscribers but still used RCN’s services to infringe SMV’s copyrighted works also don’t diminish “the well-pleaded facts that thousands of illegal downloads by subscribers did occur on RCN’s network,” it said.

The Customs Rulings Online Search System (CROSS) was updated June 5-14 with the following headquarters rulings (ruling revocations and modifications will be detailed elsewhere in a separate article as they are announced in the Customs Bulletin):

State lawmakers may be more inclined to pursue broadband affordability policies in the wake of recent FCC and court rulings as well as last month's ending of the federal affordable connectivity program (ACP), multiple telecom experts said last week. Connecticut Senate Majority Leader Bob Duff (D) told Communications Daily he hopes “these developments will lead to stronger support in 2025” for an affordable broadband proposal that failed this year. However, some anticipate ISPs will likely object, and fiscal constraints could limit states' efforts.

The next administration should look to raise criminal penalties for trade theft, broaden the scope of the Committee on Foreign Investment in the U.S. and refocus its export controls on military technologies to better compete with China, the Information Technology and Innovation Foundation said this week. ITIF also said the U.S. should push for a new “techno-economic alliance” of key trading partners and develop a new multilateral export control regime focused on semiconductors and artificial intelligence.