Matt Daneman

The FCC's partial grant of SpaceX's second-generation constellation application last month (see 2212010052) is an abuse of agency discretion under the Administrative Procedure Act and a violation of the National Environmental Policy Act, nonprofit International Dark-Sky Association told the U.S. Court of Appeals for the D.C. Circuit in a notice of appeal last week (docket 22-1337). The FCC didn't comment Tuesday.

The FCC's Q4 2022 universal service contribution factor proceeding isn't the right venue for challenging the constitutionality of the entire universal service fund regime, and Section 254 of the Communications Act "easily" answers questions about whether Congress wrongly delegated its lawmaking power by limiting and guiding the FCC's universal service implementation, the agency told the 11th U.S. Circuit Court of Appeals Dec. 22. In a docket 22-13315 reply to a challenge to the USF (see 2211220075), the FCC said the 11th Circuit also lacks jurisdiction because the suit is attempting "an end-run" around time limits for challenging an agency rule. Counsel for the petitioners didn't comment Friday.

The FCC's 2-2 deadlock, Commissioner Brendan Carr's dance moves and the agency's expiring spectrum auction authorization caught darts from FCC Chairwoman Jessica Rosenworcel in her address Thursday night at the FCBA annual dinner. A crowd of close to 1,500 attended the event at the Marriott Marquis in Washington -- the first such in-person "telecom prom" since 2019. Being the first woman to deliver the chair's traditional monologue, Rosenworcel quipped she "will receive only 83% as much laughter." She made multiple jokes about the 2-2 commission, likening it to a World Cup score and, pointing to next congressional session's Senate, said "getting a one-vote majority sounds pretty good to me." With the FCC's spectrum auction authorization expiring, she said she would have some 4.9 GHz band spectrum available directly after her speech. Showing a video clip of Carr doing "the floss" dance move, Rosenworcel joked there are "ulterior reasons Brendan doesn't want people looking at TikTok." She also took jabs at such targets as Amazon, the AT&T/Time Warner combination, local news broadcasts and Communications Daily's new sister publication, Communication Litigation Today.

Supreme Court Chief Justice John Roberts granted Dish Network designated entities Northstar Wireless and SNR Wireless until Dec. 16 to file a cert petition, per a notation Monday in SCOTUS docket 22A401. Northstar counsel Paul Clement of Clement & Murphy requested the extension to better familiarize himself with the case. Northstar and SNR are challenging the U.S. Court of Appeals for the D.C. Circuit's upholding the FCC's denial of AWS-3 auction bidding credits for the DEs (see 2206210065). "It is difficult to imagine a regime less consistent with due process or basic principles of administrative law," said Clement in the filing. "Yet the D.C. Circuit saw nothing wrong with the FCC’s behavior, or with the fact that Northstar is now on the hook for nine-figure penalties for failing to comply with amorphous standards that have survived scrutiny thus far only because the agency has always worked with applicants to cure any shortcomings between the applicants’ front-end guess of what the agency wants and the agency’s back-end, totality-of-the-circumstance determination."

Spanish-language movie producer Carlos Vasallo turned down use of YouTube's copyright management tools but is now trying to force the service to provide a nonexistent version of Content ID tailored to his preferences, defendants Google and YouTube told the U.S. District Court for the Southern District of Florida Monday in an answer to an amended copyright infringement complaint by Vasallo's Athos Overseas. The defendants in docket 1:21-cv-21698 said Digital Millennium Copyright Act safe harbors protect them from infringement claims. They said by not requesting the removal from YouTube of allegedly infringing content, Vasallo and Athos failed to mitigate damages. Counsel for the plaintiffs didn't comment Tuesday.

The 9th U.S. Circuit Court of Appeals upheld a lower court's ruling that Nevada's Video Service Law (VSL) doesn't allow Reno to seek a private right of action as it tries to get video franchise fees from streaming services Netflix and Hulu. In the opinion (docket 21-16560), Judges Susan Graber, Michelle Friedland and Lucy Koh said they wouldn't address the parties' disagreement over the meaning of "video service provider" under VSL "because it is clear that Reno lacks a cause of action under both the VSL and the Declaratory Judgment Act." Oral argument was in September (see 2209190055).

A growing wave of Video Privacy Protection Act suits in U.S. district courts targeting streaming video provision isn't expected to crest anytime soon, data security and privacy lawyers tell us. While there have been other bursts of VPPA litigation in the past, Susan Israel of Loeb said the latest crop is focused largely on use of Meta Pixel for analytics and ad targeting -- Pixel being a piece of JavaScript code that allows for tracking visitor activity on a website.

The Supreme Court will almost undoubtedly recast or cut back the broad immunity that interactive online platforms enjoy via the Communications Decency Act's Section 230 liability shield, but the dearth of high court precedent on Section 230 makes it unclear how the justices will change that legal status quo, legal experts told us. The court granted cert last week to two related cases on social media platforms' legal protection when they are used in conjunction with terror attacks (see 2210030036).