The U.S. Supreme Court won’t review a Voting Rights Act case involving the Georgia Public Service Commission, the court said Monday. A text entry in case 23-1060 said the court denied the petition, which a group of Black voters filed. It sought review of the 11th U.S. Circuit Court of Appeals' finding that elections must remain statewide for the Georgia PSC’s five members, who represent five separate districts (see 2406040044). In a May 28 brief, Georgia called the case, involving Section 2 of the Voting Rights Act, a “splitless dispute” (see 2405290009). The petitioners "are very disappointed that the Supreme Court decided not to hear this case" and are "still reviewing our options for moving forward," their attorney, Bryan Sells, said.
Adam Bender
Adam Bender, Senior Editor, is the state and local telecommunications reporter for Communications Daily, where he also has covered Congress and the Federal Communications Commission. He has won awards for his Warren Communications News reporting from the Society of Professional Journalists, Specialized Information Publishers Association and the Society for Advancing Business Editing and Writing. Bender studied print journalism at American University and is the author of dystopian science-fiction novels. You can follow Bender at WatchAdam.blog and @WatchAdam on Twitter.
New York state’s affordable internet law won’t be enforced for now, ISP associations said Monday. The industry groups won’t file a petition for rehearing or rehearing en banc of a 2nd Circuit U.S. Court of Appeals decision upholding New York state’s Affordable Broadband Act, according to a Friday letter to the court from ACA Connects, CTIA, NTCA, USTelecom and the New York State Telecommunications Association. The 2nd Circuit ruled in April that federal law doesn’t preempt the 2021 New York law requiring $15 monthly plans with 25 Mbps download and 3 Mbps upload speeds for qualifying low-income households (see 2404260051). The 2nd Circuit issued its mandate on that decision Monday. While Friday’s letter to the court didn’t say why ISPs wouldn’t seek rehearing, the industry groups previously told the court they were working toward an agreement with the state that would make a rehearing petition unnecessary (see 2406060038). In a joint statement Monday, the associations said they agreed not to seek rehearing because Attorney General Letitia James (D) agreed to “suspend enforcement of this law while the courts consider the litigation in this case.” The ISP groups said they “continue to support state and federal measures that foster broadband affordability without requiring rate regulation.” While the groups won’t seek rehearing by the 2nd Circuit, they could still seek U.S. Supreme Court review by the end of July. However, the industry groups expect a 6th Circuit ruling before that deadline -- possibly in the next three weeks -- on the FCC’s order reclassifying broadband as a Title II service, said an industry lawyer involved in the appeals process. The 6th Circuit ruling would affect how ISPs proceed on their challenge to the New York law because the 2nd Circuit decision was based on broadband as Title I, the lawyer said. If the 6th Circuit stays the FCC order, preserving a Title I world, industry would likely appeal the 2nd Circuit decision to the Supreme Court, the source said. However, if there isn’t a stay and the Title II order takes effect, industry could instead file a fresh lawsuit at the district court challenging the New York law under the Title II regime, the attorney said. AG James agreed not to enforce the state law until Aug. 21 or 14 days after a potential 6th Circuit stay of the FCC order, the attorney said. New York’s AG office referred us to the New York Public Service Commission for comment. However, a PSC spokesperson said the commission doesn’t comment on pending litigation.
Black candidates lose Georgia Public Service Commission elections due to “ordinary, colorblind partisan politics,” Georgia said in a Tuesday opposition brief at the U.S. Supreme Court (case 23-1060). Don’t grant a group of Black voters’ cert petition on a “splitless dispute regarding the distinctive structure” of the Georgia PSC, the state argued. Among other problems, petitioners failed to propose a reasonable alternative election method that could be shown to be better, it said.
A state court needn’t set a deadline for the California Privacy Protection Agency (CPPA) to make rules on cybersecurity audits, risk assessments and automated decision-making technology, with enforcement “still distant,” the agency said Wednesday. The California Superior Court of Sacramento asked May 3 if it should set a “date certain” for those rules after the California Chamber of Commerce’s lawsuit against the agency returned to the court. The court scheduled a June 21 hearing on the question. In February, California’s 3rd District Court of Appeal reversed the court’s June decision that granted a CalChamber petition and stayed any CPPA rules for 12 months after they become final. CalChamber petitioned for review at the California Supreme Court (see 2402210031), but that court declined to take the case on April 24. As a result, the only remaining issue for the Superior Court to decide is whether to set a deadline for the upcoming CPPA rules. In its Wednesday brief, the privacy agency said it started drafting remaining rules at issue in the case and will finalize them "once it has determined that it has received sufficient feedback from stakeholders and obtained necessary approval from state control agencies. In the meantime, it will not enforce the law in the specific areas still subject to regulation. Petitioner is entitled to nothing more.” It would be “improper” for the court to set a deadline because the Administrative Procedure Act (APA) “rulemaking process involves a substantial exercise of judgment and discretion over the timeline of the process itself,” the agency said in case 34-2023-80004106-CU-WM-GDS. “Petitioner's interests are already protected by enforcement delays and the APA-mandated procedures for stakeholder input.” The agency already took more feedback than the APA requires in a pre-rulemaking phase and will soon seek more input when it opens a formal rulemaking process, added the agency. In another brief, CalChamber pointed out that the agency was supposed to adopt final rules by July 1, 2022. “Petitioner continues to be concerned about the Agency’s timeline for fulfilling its statutory obligations with respect to the three outstanding rulemakings.” Given the coming rules’ significance, CalChamber "remains invested in ensuring the Agency does not attempt to adopt the regulations on a timeline that does not allow sufficient time for stakeholder review and participation, public comments, and meaningful consideration of public input,” said the business group. That said, CalChamber noted that only the agency "can fully address the anticipated timing for the adoption of the outstanding regulations.”
AT&T, T-Mobile and Verizon Wireless will pay about $10.25 million to the 50 states and the District of Columbia under an agreement that settles claims of deceptive and misleading advertising practices, multiple state AGs announced Thursday. The bipartisan AGs signed a pact with AT&T, T-Mobile and Verizon Wireless to resolve the investigations. The three carriers “baited consumers with deceptive claims about ‘unlimited’ data, ‘free’ phone offers and incentives to switch, only to switch the offer and not deliver on their advertised claims,” Minnesota Attorney General Keith Ellison (D) said. In addition to the monetary penalties, the carriers agreed to make future ads truthful, accurate and not misleading, Ellison's office said. Going forward, unlimited must mean no numerical limits and such plans should disclose any data speed restrictions and what triggers them, it said. Carriers offering to pay for customers to switch companies must clearly disclose what and how they will pay consumers, it said. Among other requirements, the carriers must present clear terms and conditions for so-called free devices or services, it said. A CTIA spokesperson said the “voluntary agreements reflect no finding of improper conduct and reaffirm the wireless industry’s longstanding commitment to clarity and integrity in advertising so that consumers can make informed decisions about the products and services that best suit them.” T-Mobile said, “After nine years, we are glad to move on from this industry-wide investigation with this settlement and a continued commitment to the transparent and consumer-friendly advertising practices we’ve undertaken for years.” AT&T and Verizon referred us to CTIA’s statement. State AGs slammed the carriers as they applauded the settlement. New York AG Letitia James (D) said it’s a good resolution after carriers “lied to millions of consumers.” Many wireless carriers' deals are “too good to be true,” California AG Rob Bonta (D) said. Ohio AG Dave Yost (R) said “it's unacceptable to make false promises about what consumers might expect from their wireless carriers.”
Vermont’s net neutrality law seems in good shape legally following two significant, late-April decisions by the FCC and the 2nd U.S. Circuit Court of Appeals, said experts on the statute. ISP groups must decide what to do with their 2018 lawsuit at U.S. District Court of Vermont now that the case can resume following the 2nd Circuit ruling.
Federal law doesn't preempt New York state’s Affordable Broadband Act (ABA), the 2nd U.S. Circuit Court of Appeals decided Friday. In a 2-1 opinion, the court reversed the U.S. District Court for Eastern New York, which had barred the state from enforcing the 2021 Affordable Broadband Act (ABA). The ABA required $15 monthly plans providing 25 Mbps download and 3 Mbps upload speeds for qualifying low-income households.
The 9th U.S. Court of Appeals agreed with a lower court that denied preliminary injunction against the California Public Utilities Commission shifting to a per line surcharge for the state Universal Service Fund. T-Mobile’s Assurance Wireless had argued that the state must align with the FCC’s revenue-based method for federal USF. But on March 31 last year, the U.S. District Court for Northern California decided not to block the CPUC’s April 1 change. The 9th Circuit heard arguments on an appeal in October (see 2310170042). "The carriers have failed to show a likelihood of success on their claim that the access line rule is 'inconsistent with' the FCC rule,” Judge Ryan Nelson wrote in Friday’s opinion, which Judges Jacqueline Nguyen and Eugene Siler joined (case 23-15490). The court referred to the Communications Act's Section 254(f), which prohibits USF rules that are "inconsistent" with FCC rules. Inconsistent doesn’t mean different, Nelson wrote. "The access line rule differs from the FCC’s rule funding interstate universal service programs. But the carriers have not shown that it burdens those programs, and they have thus failed to show that they are likely to succeed on their claim that it is inconsistent with those rules." Also, the court rejected T-Mobile’s claim that the surcharge rule is preempted because it's inequitable and discriminatory. "The carriers argue that they are harmed more than local exchange carriers,” but the CPUC rule treats all telecom technologies “the same and, if anything, is more equitable than the prior rule, under which most of the surcharges came only from ever-dwindling landline services,” Nelson said. The CPUC’s "course correction" is "a fair response to a real problem,” he added. “In a world of ever-evolving telecommunications technologies, competitive neutrality must allow some play in the joints. To hold otherwise would hamstring California’s ability to satisfy its statutory mandate of providing universal service." T-Mobile also argued the change was discriminatory because the CPUC rule treats providers who get federal affordable connectivity program (ACP) support differently from those in the state LifeLine program. But the court found differences between the programs and noted that companies in ACP have the option of joining LifeLine. The decision "affirms that the CPUC's surcharge rule is consistent with federal law," said a commission spokesperson. "The CPUC will continue to utilize the surcharge to ensure consumers have safe, reliable, affordable, and universal access to telecommunications services." T-Mobile didn’t immediately comment.
Virginia broadband providers applauded a federal court for tossing a railroad association’s challenge of a 2023 state law that gave ISPs access rights to railroad property. In an opinion Monday, U.S. District Court for Eastern Virginia Judge David Novak dismissed a lawsuit by the Association of American Railroads (AAR) against state officials including Virginia State Corporation Commission Judge Jehmal Hudson (case 1:23-cv-00815-DJN-WEF). The court rejected two counts for lack of standing, two for failure to state a claim and two as barred by sovereign immunity.
CTIA still disagrees with a Kentucky 911 law that was upheld in court Friday, the wireless industry association said Tuesday. The U.S. District Court for Eastern Kentucky ruled that federal law doesn’t preempt the state from requiring Lifeline providers to directly pay state 911 fees. Kentucky’s policy is constitutional and doesn’t frustrate Congress’ universal service objectives, the court said.