Federal appellate judges overturned a ruling that Time Warner Cable violated the Telephone Consumer Protection Act, further undercutting broad definitions of restricted automated telephone dialing systems (ATDS). A district court ruling, which cited a now-vacated FCC decision, was based on an incorrect statutory interpretation, ruled a unanimous three-judge panel of the 2nd U.S. Circuit of Court of Appeals Friday in Araceli King v. TWC, No. 15-2474. The panel noted the district court granted plaintiff King partial summary judgment on a claim that the company knowingly or willfully violated the TCPA by using an ATDS to call King's cellphone 153 times without her consent. The panel said the district court "relied primarily" on a 2015 FCC ATDS definition that was invalidated by the D.C. Circuit in ACA International (see 1803160053). The commission "broadly construed the term 'capacity' and thus extended the TCPA to reach any device that could be modified by software changes to perform the functions of an autodialer," said 2nd Circuit Judge Gerard Lynch's opinion on an appeal by TWC, part of Charter Communications. "In the wake of ACA International, which invalidated that Order and thereby removed any deference we might owe to the views the FCC expressed in it, we must decide independently whether the district court’s broad understanding of the 'capacity' a device must have in order to qualify as an ATDS under the TCPA is a supportable interpretation of the statute. We conclude that it is not." Although not bound by the D.C. Circuit interpretation, "we are persuaded by its demonstration that interpreting 'capacity' to include a device’s 'potential functionalities' after some modifications extends the statute too far," Lynch wrote, vacating and remanding the district court ruling. A King attorney didn't comment Monday.
Tennessee electric cooperatives are bringing fiber broadband to rural areas that earlier were unserved or underserved, after a 2017 state law lifted restrictions, said co-op officials in interviews. In April 2017, Gov. Bill Haslam (R) signed a bill allowing nonprofit electric co-ops to provide retail broadband and video service within their footprints (see 1704270032). Policymakers at state, local and federal levels should look for ways to encourage co-op entry into broadband, said National Rural Electric Cooperative Association CEO Jim Matheson. “Anything that opens up the playing field for all participants to engage is the right thing.”
Local governments cheered Commissioner Jessica Rosenworcel for sharing San Jose's 5G agreements as a model code while the FCC weighs rules to lower perceived local barriers. But carriers and others said San Jose's pact with industry is no model. The commissioner Wednesday released model agreements for small-cell 5G deployment negotiated by San Jose with wireless companies (see 1806150033), amid local government complaints that model codes developed by the FCC Broadband Deployment Advisory Committee favor industry.
VoIP and text messaging should be classified as "interstate, information services, freeing them from unnecessary federal and state requirements," FCC Commissioner Mike O'Rielly told the Cloud Communications Alliance Tuesday night, according to remarks posted Wednesday. "Both services are extremely popular with consumers and businesses, and there is abundant competition both from legacy providers and new over-the-top players to meet the market’s needs. Nonetheless, both services continue to be the target of what I’ve called regulation by analogy." FCC failure to classify VoIP as an information service while subjecting it to some telecom regulation "only served to encourage mission creep by prior Commissions and regulatory ambitious states," some of which are trying to regulate VoIP, he said. A Minnesota case "is being litigated in the courts, and I appreciate that the Chairman and Office of General Counsel were willing to work with me on an amicus filing explaining the legal and practical problems with Minnesota’s approach," he said, lamenting that the agency "must divert staff resources to stamp out efforts that are contrary to the law and common sense." Charter Communications is squaring off with the Minnesota regulator (see 1806120026). O'Rielly said more deregulatory efforts are needed, including in a biennial review of telecom rules to be launched later this year. He said there are areas where the FCC needs to be proactive, including freeing up spectrum for commercial use in high-band and mid-band frequencies. "My focus has not only been on concluding the so-called Citizens Band Radio Service at 3.5 GHz, but also reallocating the C-Band spectrum for additional wireless uses," he said. "This will provide large slices of spectrum for licensed services at 3.7 to 4.2 GHz, while permitting us to allow unlicensed services at 6 GHz. After some initial resistance internally and externally, it is great to see everyone come around to this line of thinking."
An EU plan to require major content-sharing platforms to monitor users' uploads moved forward Wednesday. By 14-9, the European Parliament Legal Affairs Committee (JURI) approved a report responding to a 2016 European Commission proposal for a directive on copyright in the digital single market. The report, by Member of the European Parliament (MEP) Axel Voss, of Germany and the European People's Party, supports the EC's controversial calls for a new right (Article 11, the "neighboring" right, also called the "snippet tax") for online news publishers, and for large platforms to filter users' uploads to prevent copyright breaches (Article 13).
A federal court ruling that invalidated West Virginia one-touch, make-ready (OTMR) rules doesn’t stop states from making such rules if they first reverse pre-empt the FCC on pole attachments, said NARUC General Counsel Brad Ramsay Tuesday. West Virginia’s OTMR rules are pre-empted by federal law and the state may not apply or enforce them, U.S. District Court in Charleston, West Virginia, said in a Monday judgment (in Pacer). The court granted a joint motion for summary judgment by Frontier Communications, the West Virginia Cable Telecommunications Association (WVCTA) and Communications Workers of America (see 1803080028). The Public Service Commission didn’t “dispute that Article 4 conflicts with the Federal Communication Commission’s regulatory regime governing pole attachments,” nor that “Article 4 is preempted because of the conflict under the Supremacy Clause of the United States Constitution,” so “there is no issue for this Court to determine,” wrote Chief Judge Thomas Johnston in the four-page opinion (in Pacer). “The Court must enjoin the enforcement of Article 4.” Johnston noted future actions by the state legislature or others “could lead to the dissolution of the injunction.” The state commission declined comment. NARUC’s Ramsay emailed that the decision “says nothing about whether a state can” make OTMR rules. West Virginia never reverse pre-empted the FCC to regulate pole attachments itself, and the state conceded that in the case, he said. It doesn’t mean a state that reverse pre-empted the FCC can’t make such rules, or that West Virginia can’t now reverse pre-empt and then make OTMR rules, he said. The court ruling pleased WVCTA, said Executive Director Mark Polen in an interview. Cable companies weren’t causing problems, with the law really a “punitive statement against Frontier made by the legislature and some of their competitors,” he said. WVCTA didn’t see any companies try to invoke the OTMR rules after the law took effect last summer, he added. Polen heard some talk in the legislature about West Virginia reverse pre-empting the FCC on attachments, but it didn’t seem to have legs there or at the PSC, Polen said. WVCTA is “comfortable” following the federal regime, he said. A Frontier spokesperson applauded the ruling, emailing that the law “would have allowed unsupervised attachments on our poles that would have been potentially dangerous or unsafe to our employees and the public.” The spokesperson didn’t respond to Polen blaming Frontier for the state law. Pennsylvania last week said it's weighing reverse pre-emption (see 1806140057). Courts have clashed on the legality of local OTMR rules, with one federal court ruling against requiring the practice in Nashville and another supporting a similar ordinance in Louisville (see 1711270051).
The Lifeline national verifier is operational in Utah and five other “soft launch” states, the FCC announced Monday. Universal Service Administrative Co. got Federal Information Security Management Act (FISMA) accreditation Friday, said USAC Communications Director Jaymie Gustafson in a Monday interview. The reveal surprised observers, coming less than a week after the USAC official told a Utah Public Service Commission workshop the release date was unknown. Growing delay brought scrutiny from states and others (see 1806070022), as has an FCC proposal to cut Lifeline support to resellers (see 1806150048).
TVs were the big winner Friday when the Office of the U.S. Trade Representative eliminated them from its final list of Chinese imports earmarked for Trade Act Section 301 tariffs of 25 percent. Other sectors didn’t fare so well, including those that import Chinese printer parts, thermostats and computer equipment used in artificial intelligence and blockchain technology. China vowed to retaliate "immediately."
Many urged the FCC to limit business-oriented caller exposure to Telephone Consumer Protection Act liability, after partial court reversal of a 2015 commission decision targeting unwanted robocalls (see 1803160053). Financial and other corporate interests, including some telecom groups, said the commission should narrow its key definition of "automatic telephone dialing systems" (ATDS) subject to TCPA wireless restrictions and give parties more protection when making inadvertent calls to reassigned numbers. Consumer groups, class-action parties and a few others resisted such pleadings, which they said would further open the floodgates to unwanted robocalls. Comments were included in docket 18-152 on a public notice inviting input on the remand and other TCPA interpretations (see 1805150014).
State net neutrality actions show a strong public rebuke of the FCC December order that took effect Monday (see 1806110054), consumer advocates said on a National Regulatory Research Institute (NRRI) webinar Wednesday. But a Montana commissioner and broadband industry officials dismissed efforts as politically driven and probably not effective. A Rhode Island net neutrality bill cleared a key Senate committee Tuesday and lawmakers could pass restrictions on state ISP contracts by the end of next week, said sponsor state Sen. Louis DiPalma (D) in an interview. California lawmakers plan more hearings next week.