A state appeals court upheld a 2021 California Public Utilities Commission decision to adopt imputation of net positive retail broadband internet access service revenue of 10 small LECs and their ISP affiliates when calculating California High Cost Fund A (CHCF-A) support. The CPUC adopted the order April 15, 2021, and denied the LECs’ rehearing request Aug. 19 that year. The telcos sought court review of the two decisions in September 2021. In a Dec. 20 unpublished opinion, the 5th District California Court of Appeals rejected the 10 RLECs’ argument that broadband imputation isn't authorized by state law, exceeds the CPUC's authority, is preempted by federal law and is an unconstitutional taking. On the federal preemption issue, the CPUC is right that broadband imputation doesn't directly "impose economic or public utility type regulation on the ISP affiliates,” Justice Donald Franson wrote (case F083339). “It does not directly impose any requirement on their rates and practices, prohibit discrimination, impose tariffing requirements, impose accounting requirements, restrict entry or exist from the ISP business, impose interconnection obligation, or require unbundling or network access.” The CPUC "correctly found that broadband imputation does not impose price controls on ISP affiliates and does not impose any additional regulations affecting their operations." The court disagrees with telcos' argument that broadband imputation's indirect effects result in economic or utility-style regulation of ISPs, Franson added. On the constitutional claim, Franson wrote, “A subsidy is not private property and, therefore, the reduction of the subsidy does not constitute the taking of private property of the telephone companies or the ISP affiliates.” Justices Bert Levy and Kathleen Meehan concurred.
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.
A Pennsylvania appeals court remanded for a second time in a four-year-old legal fight to get a variance for erecting a 195-foot wireless tower on a school district’s property. Vogue Towers submitted a variance application in December 2018 and received approval from the Upper Yoder Township Zoning Hearing Board in April 2019. Citizens from Upper Woodmont appealed to a state trial court, which sided with the company. But on appeal, the Pennsylvania Commonwealth Court in July 2020 remanded so the lower court could determine if the company was applying for a location squarely within the board's jurisdiction. Later, the Yoder township updated its zoning ordinance and Vogue Towers amended its application to ensure the tower was in the township’s limits. The board approved the amended application in December 2020, but the citizen objectors appealed again. In April 2021, the trial court dismissed the complaint and affirmed the zoning board’s decision. Citizens appealed the case back to the Commonwealth Court. Judge Michael Wojcik ruled Thursday that the lower court suitably complied with his court’s previous remand. “However, there is absolutely no record evidence demonstrating that the new site for the proposed cell tower as provided in the Amended Application meets all of the mandatory requirements supporting the grant of a variance under either the Zoning Ordinances" or the Pennsylvania Municipalities Planning Code. "As a result, we are constrained to again vacate the trial court’s order affirming the Board’s decision, and remand the matter to the trial court to receive evidence demonstrating that the new site … meets all of the required elements supporting the grant of a variance.”
Two federal judges noted recent Georgia political developments as they pushed back on arguments that the Georgia Public Service Commission election violates 1965 Voting Rights Act Section 2 protections against racial discrimination. The 11th Circuit U.S. Court of Appeals heard oral argument Thursday on Georgia’s appeal of a lower court’s ruling that electing PSC members for specific districts on a statewide, at-large basis illegally dilutes Black residents' votes (see 2210200035). The Supreme Court in August postponed Nov. 8-scheduled Georgia PSC elections, reversing the 11th Circuit's 2-1 decision to reverse the U.S. District Court in Atlanta.
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.
Federal court review of the Maryland digital ad tax’s pass-through ban could soon be dismissed without prejudice. Expect a ruling “very promptly,” said U.S. District Court for Northern Maryland Judge Lydia Kay Griggsby at a virtual motions hearing Tuesday. Griggsby signaled she was inclined to rule the case moot due to a recent state court decision striking down the tax (see 2210240064). Maryland Attorney General Brian Frosh (D) appealed that ruling to the state’s Special Appeals Court, said a notice last week at the Circuit Court for Anne Arundel County (case C-02-CV-21-000509).
Recent Texas laws preempting local governments in the right of way (ROW) are permissible under the state constitution, the state argued this week at the Texas 3rd Court of Appeals. Cities disagreed earlier this month that a lower court could uphold the rental rate caps in the state’s 2017 small-cells law without at least considering material facts. The Texas constitutional principle at issue here shouldn’t be foreign to other states, said local government attorney David Brown in an interview. “The expectation is that governments don’t give away property.”
Businesses may need to reconsider their strategies for complying with California privacy law after Attorney General Rob Bonta’s summer action against Sephora signaled aggressive enforcement by the state, attorneys said in interviews. Privacy compliance work is especially urgent with California’s 30-day right to cure going away Jan. 1 and more state laws taking effect in 2023, the lawyers said.
Maryland said a federal court is “free to proceed” with Nov. 29 oral argument on the state’s ban on passing its digital ad tax’s costs to customers. U.S. District Court for Northern Maryland Judge Lydia Kay Griggsby asked Maryland last week to weigh in on whether the hearing should still happen given a state court decision to strike down the tax (see 2210240064). “The ruling issued by the Circuit Court for Anne Arundel County … does not affect the ability of this Court to adjudicate this case, because the circuit court’s ruling is subject to appeal, and the outcome of that case will not be known at least until the conclusion of the appeal,” Maryland wrote Monday. Since Comcast, plaintiff in the state case, didn’t “exhaust administrative remedies before filing suit, Maryland statutes and precedent pose a considerable obstacle to affirmance of the circuit court’s ruling,” the state added. Federal plaintiff U.S. Chamber of Commerce earlier said the state ruling doesn't moot the federal case.
Pay no mind to an FCC brief observing possible justifications for a challenged California LifeLine rule, the National Lifeline Association said Friday at the 9th U.S. Circuit Court of Appeals. The California Public Utilities Commission agreed with the FCC office of general counsel’s August analysis in case 21-15969. FCC precedent supports finding the California rule isn’t preempted, the CPUC said.
The Florida Telephone Solicitation Act isn’t unconstitutional, a consumer plaintiff disagreed Monday with CPAP breathing mask maker AeroCare at U.S. District Court for Middle Florida (case 22-cv-1047). In a separate case on Florida’s mini Telephone Consumer Protection Act (TCPA) at the District Court for Southern Florida, a federal judge ruled Oct. 20 that Everglades College must answer a FTSA class action concerning education-related text messages (case 22-cv-22307). AeroCare sent texts asking Tyler DeSouza to order supplies for the breathing machine he no longer owned, even after DeSouza replied “stop” three times and AeroCare responded each time promising no more messages. AeroCare argues that FTSA is too vague, impermissibly restricts speech and violates the U.S. Constitution's dormant commerce clause. "While Defendant suggests 'telephonic sales call' is vague in all applications because the phrase 'soliciting a sale' is undefined, a legislature is 'not required to define each and every word in a piece of legislation to express clearly its will,'" said the plaintiff, citing the 11th U.S. Circuit Court of Appeals in 2021 case Catalyst Pharms v. Becerra. "Persons of common intelligence" can understand what soliciting a sale means, it added. FTSA includes no exceptions covering AeroCare's texts, DeSouza said. FTSA doesn’t unconstitutionally restrict speech, the plaintiff said: Intermediate scrutiny applies since the law restricts commercial speech and FTSA satisfies that standard because the government has substantial interest in restricting unwanted robocalls, “especially after the caller is asked to stop.” FTSA directly advances that interest and is appropriately tailored, DeSouza said. FTSA doesn't violate the dormant commerce clause because Congress authorized states to regulate telemarketing in the TCPA and FTSA doesn't regulate or unduly burden interstate commerce, the plaintiff said. In the Everglades College case, Judge Beth Bloom said the college didn't "provide persuasive authority for the proposition that the FTSA does not apply to educational services” and the court won’t "read that limitation into the statute.” FTSA didn’t specifically carve out education, and consumer protection laws should be construed liberally in consumers' favor, she said. The text messages sent by the college are actionable, Bloom said. "Whether Plaintiff consented or whether the communications sent by Defendant were in response to Plaintiff's inquiry are issues of fact that the Court does not consider at this juncture.” The college's consent language, to which defendant agreed, doesn't “include consent to receive telephonic sales calls,” she added.