Monty Tayloe

The 9th U.S. Circuit Court of Appeals' broad interpretation of laws against abetting terrorism would mean any provider of goods or services -- from banks to airlines -- could be held liable for treble damages if a terrorist patronized their businesses, said Twitter, Google and Facebook in briefs filed Tuesday in docket 21-1496 in their U.S. Supreme Court appeal of the ruling, Twitter v. Taamneh. “The Ninth Circuit embraced an atextual and boundless conception of ‘knowingly providing substantial assistance,’” said Google and Facebook in a joint filing. “That is not a tenable scope of liability,” said Twitter in a separate filing.

Fourteen cellular partnerships filed breach of contract and breach of fiduciary duty suits against AT&T and several subsidiaries in Delaware Chancery Court in relation to a decade-long court case over cellular partnerships, said multiple filings Monday.

Nexstar must turn over documents related to its local marketing agreement with Mission Broadcasting to operate WPIX New York, said an order Saturday in the broadcaster’s breach of contract case against Comcast in docket 1:21-cv-06860 in the U.S. District Court for Eastern New York. Nexstar had disputed Magistrate Judge Stewart Aaron’s order that its relationship to Mission and WPIX was relevant to the case (see 2211010063). “Given Magistrate Judges’ broad discretion” in handling discovery disputes “plainly there was no abuse of discretion,” wrote District Judge John Koeltl.

A 9th U.S. Circuit Court of Appeals ruling on automatic dialing systems in Borden v. Efinancial (docket 21-35746) has likely narrowed the range of possible TCPA cases in that circuit, and an 8th Circuit panel upheld a lower court ruling narrowly defining what sort of fax constitutes an unsolicited advertisement in BPP v. Caremark CVS (docket 21-3791), in opinions issued this week. The Telephone Consumer Protection Act’s prohibition against the use of automatic dialing systems applies only to automated systems that generate telephone numbers, not to other systems that use random or sequential number generation to select from a list of numbers to call, said the 9th Circuit.

AT&T wants a federal court to prevent Lumen from disconnecting circuits used to provide services to wireless and wireline customers, said a reply brief last week in support of a preliminary injunction filed in docket 1:22-cv-02206-RM-KLM in U.S. District Court in Colorado. The proceeding stems from a complaint filed by Lumen in August over unpaid time division multiplexing fees. “Lumen’s threatened disconnection would cause catastrophic harm to AT&T and its affected customers,” said AT&T’s motion. AT&T has argued that Lumen is seeking to raise the fees by 20%, while Lumen has argued that AT&T was previously seeing a discounted rate, and that the increased prices are consistent with the market price. “Even if AT&T pays the amounts Lumen demands now, Lumen will threaten disconnection again unless AT&T keeps paying Lumen at the rates it demands while this case proceeds,” AT&T said. “AT&T would be irreparably harmed by this massive out-of-pocket cost.” Along with the injunction, AT&T is also seeking to have the case transferred to the Southern District of New York, and the motion says the court should rule on the transfer motion first, because Lumen has agreed not to disconnect any circuits until the Colorado court or a court in the Southern District of New York have ruled on the preliminary injunction. Lumen previously planned to disconnect the circuits Dec. 5, the transfer motion said. Lumen opposes the transfer motion, and has argued that its agreements with AT&T mean the case doesn’t have to be transferred.

Dueling intervenor briefs from SoundExchange, Google and broadcast trade groups filed Wednesday in the U.S. Court of Appeals for the D.C. Circuit challenged arguments in the combined appeals of the Copyright Royalty Board’s Web V ruling on royalty rates for webcast music.

Conservative Supreme Court justices at Monday’s oral argument in SEC v. Cochran appeared open to allowing entities to bring structural, constitutional challenges to federal agency actions in district court before a final judgment but expressed concern about the possible ramifications. A decision in the case could have implications for federal agencies (see 2211030063), particularly those with administrative law judges, such as the FCC. SCOTUS heard argument in a related case, Axon v. FTC, the same day (see 2211070049).

An administrative law case to be argued before the U.S. Supreme Court Monday could have implications for challenges to federal agency decisions, including at the FCC and FTC, according to interviews with attorneys and academics. Cochran v. SEC (docket 21-1239), and similar case Axon Enterprise v. FTC (docket 21-86) concern whether parties have to wait for a final agency ruling before they can appeal to the courts.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit hearing oral argument Tuesday appeared to sympathize in part with Schwab Multimedia’s difficulty in constructing an AM station during the pandemic but also seemed to agree with FCC arguments that COVID-19 didn’t change the agency’s rules around requesting extensions for construction deadlines (docket 22-1016).

Comcast and Nexstar are battling over discovery in a year-old retransmission consent case Nexstar v Comcast, which involves Nexstar’s relationship to sidecar broadcaster Mission and WPIX New York, according to filings Friday and Monday in docket 1:21-cv-06860 in the U.S. District Court for Eastern New York.