Howard Buskirk

Dish Network got support from public interest groups and the Phoenix Center on its request for an extension, until June 30, to exercise an option to buy 800 MHz licenses from T-Mobile. T-Mobile and parent Deutsche Telekom oppose the extension. Last week, Dish defended its request in a filing at the U.S. District Court for the District of Columbia (see 2309010050).

Dish Network fired back Friday at T-Mobile in their dispute (see 2308280055) over whether the emerging carrier should have until June 30 to exercise an option to buy 800 MHz licenses from T-Mobile. Dish asked for an extension from the U.S. District Court for the District of Columbia. The option to buy the licenses was part of a web of agreements in T-Mobile’s buy of Sprint (see 2308170065). Dish noted T-Mobile’s dominance among U.S. wireless carriers, with the largest market cap of the big three. “T-Mobile wants the Court to view DISH’s Motion as nothing more than an ordinary commercial dispute,” Dish said: “The Opposition reads as if the Court’s evaluation of this Motion were just an exercise in contract interpretation. But the Opposition’s rhetoric about how contracts ought to be read obfuscates the key principle relevant to the Court’s analysis of the Final Judgment: preserving Competition.” Dish noted that two weeks ago, in agreeing to the spectrum transfer, T-Mobile told the FCC, “The terms of the Final Judgment are designed to facilitate DISH’s entry into the wireless market as a facilities-based provider and ... [t]he 800 MHz spectrum licenses contemplated by this transaction will substantially enhance DISH’s ability to do so.” That admission undermines T-Mobile’s opposition to an extension, Dish said: T-Mobile’s objection “should be seen for what it is: an attempt by the market leader to hinder a nascent competitor, one that has taken on the Herculean task of building a modern nationwide facilities-based wireless network in a period of unprecedented economic turmoil.”

T-Mobile US and parent Deutsche Telekom oppose Dish Network's move to delay until June 30 Dish's purchase of T-Mobile’s 800 MHz spectrum. Earlier this month, Dish asked the U.S. District Court for the District of Columbia to give it until that date to put together financing to buy the spectrum, which was part of a web of agreements around T-Mobile’s buy of Sprint (see 2308170065). Dish would have to pay a $72 million fee for walking away from the deal (see 1907260071).

The U.S. Court of Appeals for the D.C. Circuit upheld a 2022 FCC decision revoking Pacific Networks’ and its subsidiary ComNet’s authority to offer domestic or international services in the U.S. The FCC “revoked these authorizations based on concerns that the carriers posed national-security risks and had proven themselves untrustworthy,” said a decision written by Judge Gregory Katsas, in docket 22-1054. “The carriers argue that the FCC’s reasoning was substantively arbitrary and was rendered with inadequate process,” he said: “We reject both contentions.”

Motorola Solutions this week defended an FCC order last year clamping down on gear from Chinese companies, preventing the sale of yet-to-be authorized equipment in the U.S. (see 2211230065), against legal challenges brought by Dahua USA and Hikvision USA. The case is before U.S. Court of Appeals for the D.C. Circuit (docket 23-1032), and the government defended the order last week (see 2308010047). “Congress” and the FCC “placed Petitioners' video-surveillance equipment that meets certain criteria on the Covered List for one simple reason -- it endangers national security,” Motorola said in a Monday filing: “In a series of statutes and orders, the federal government has with one voice determined that this equipment should not connect with government networks, should not be subsidized with federal dollars, and -- in the Order under review -- should not be authorized for use in connection with American broadband networks.” The case “does not require this Court to guess at Congress's intent or speculate on the scope of the Commission's authority,” the company said. In approving the Secure Equipment Act, Congress “ratified and endorsed the very FCC actions Petitioners challenge, including the placement of their equipment on the Covered List.” Motorola also said the challenge was untimely and should be rejected as such, since the case falls under the Hobbs Act, which carries a 60-day limitations period on filing an appeal. “The arguments advanced in Argument Sections I and II of Petitioners' brief are barred because they challenge the 2020 order that included their video equipment on the Covered List,” the company said. The FCC also reasonably interpreted the 2019 Secure Networks Act, Motorola said: “The FCC reasonably determined that ‘communications equipment or service’ encompasses ‘all equipment or services used in fixed and mobile broadband networks, provided they include or use electronic components.’ … As the FCC observes, ‘[P]etitioners' video cameras and recorders are ... essential to ... the transmission of video information over the internet for video surveillance.’" The lead lawyer on the amicus brief is Wiley’s Thomas Johnson, former FCC general counsel.

DOJ and the FCC on Monday defended the commission’s order last year further clamping down on gear from Chinese companies, preventing the sale of yet-to-be authorized equipment in the U.S. (see 2211230065). Dahua USA and Hikvision USA challenged the order, which implements the 2021 Secure Equipment Act, questioning whether the FCC exceeded its legal authority (docket 23-1032). The case is in the U.S. Court of Appeals for the D.C. Circuit. Oral argument isn't scheduled.

A group of commercial fishing companies is urging the U.S. Supreme Court to do away with the Chevron doctrine, in a brief filed Monday in Loper Bright Enterprises v. Raimondo. Many observers consider SCOTUS likely to eliminate or severely limit Chevron deference (see 2306290063). The lead lawyer on the brief (docket 22-451) is Paul Clement, U.S. solicitor general under George W. Bush.

The FCC was in the hot seat Tuesday at the 9th U.S. Circuit Court of Appeals, which heard oral argument in League of California Cities v. FCC (case 20-71765) on a challenge to a wireless siting declaratory ruling approved in June 2020 under former Chairman Ajit Pai (see 2006090060).

The U.S. Supreme Court’s 6-3 decision last week in the student loan case, Biden v. Nebraska, didn’t touch on communications law, but it delves deeper into the "major questions doctrine" laid out a year ago in West Virginia v. EPA (see 2206300066). Legal experts told us the opinion, by Chief Justice John Roberts, appears to further expand when the doctrine may apply and moves the court further away from the Chevron doctrine. The case also has implications for the most controversial items addressed by the FCC, including net neutrality, experts said.

Lawyers at Venable said Thursday U.S. Supreme Court justices will likely find it irresistible to use an upcoming case, Loper Bright Enterprises v. Raimondo, to clarify the status of the Chevron doctrine (see 2305050038). The lawyers noted during a webcast that the brief seeking review of the case (docket 22-451) was written by Paul Clement, U.S. solicitor general under George W. Bush, and is salted with citations to decisions by many of the conservative justices inviting a review of Chevron.