A coalition of industry groups on Friday challenged the FCC's net neutrality order and declaratory ruling reclassifying broadband as a Communications Act Title II telecom service.

The coalition, which included USTelecom, NCTA, CTIA, ACA Connects and several state broadband associations, asked the FCC to stay the effective date of its order and declaratory ruling pending judicial review. In addition, CTIA filed a petition for review of the FCC order at the D.C. Circuit U.S. Court of Appeals. The Benton Institute for Broadband & Society also sought partial review of the order at the D.C. Circuit.

The framework is "unlawful under both the major-questions doctrine and ordinary principles of statutory interpretation," the industry groups said in the petition filed with the FCC Friday. The groups warned that its members will "immediately be required to reevaluate, put on hold, and potentially scrap new offerings and business initiatives" if the order takes effect. The public "would suffer minimal harm from putting the Commission’s rule on hold," the groups said.

The U.S. Court of Appeals for the D.C. Circuit handed Chinese companies Hikvision and Dahua a partial victory Tuesday, holding in an opinion (docket 23-1032) that the FCC’s definition of critical infrastructure is “overly broad.” The three-judge panel rejected arguments that video cameras and video-surveillance equipment the companies manufactured shouldn’t have been placed on the FCC’s “covered list” of unsecure gear. The case was argued in December (see 2312140061).

The court remanded an order addressing products by the companies to the FCC “to comport its definition and justification … with the statutory text” of the National Defense Authorization Act for Fiscal Year 2019. The court otherwise upheld the FCC order.

“We hold that the [Secure Equipment Act] ratified the composition of the Covered List and leaves no room for Petitioners to challenge the placement of their products on that list,” said the opinion, written by Circuit Judge Florence Pan. “The definition of ‘critical infrastructure’ ultimately adopted by the FCC includes any ‘systems or assets’ that are merely ‘connected to’ the sixteen sectors identified by” Presidential Policy Directive 21 “or the fifty-five functions listed by the [Cybersecurity and Infrastructure Security Agency] risk-management,” the court held: “The FCC failed to explain or justify its use of the expansive words ‘connected to,’ and the scope of the definition is therefore arbitrarily broad.”

The 8th U.S. Circuit Court of Appeals denied a motion from 20 industry and business groups, including CTIA, USTelecom and the U.S. Chamber of Commerce, for expedited briefing and oral argument on their 16 consolidated petitions to vacate the FCC's Nov. 20 digital discrimination order, said the court’s order Wednesday (docket 24-1179).

The 8th Circuit granted unopposed motions for leave of two petitioners -- the Media Alliance and Great Public Schools Now and of the Benton Institute for Broadband & Society -- to intervene on the FCC’s behalf to prevent the order from being completely vacated, though they do oppose portions of it.

The industry petitioners argued in their motion that expedited briefing would ensure the 8th Circuit has enough time to render a decision on the petitions for review before the digital discrimination order takes effect Sept. 22. The FCC opposed the motion, arguing that “accelerating this highly complex proceeding” would prejudice the government.

The 2nd U.S. Circuit Appeals Court will hold in abeyance, pending the U.S. Supreme Court’s decisions in the NetChoice challenges of the Florida and Texas social media laws, New York Attorney General Letitia James’ appeal to lift the district court’s injunction that blocks her from enforcing New York’s Hateful Conduct Law, Section 394-ccc, said a 2nd Circuit clerk’s order Friday (docket 23-356). SCOTUS plans oral argument Monday on the tandem NetChoice challenges.

The 2nd Circuit ordered the parties each to submit a letter brief, addressing the effect, if any, that the SCOTUS decisions would have on the New York AG’s appeal.

Whether the 2nd Circuit should wait to resolve James’ appeal of the Section 394-ccc injunction until after SCOTUS rules on the NetChoice challenges was a recurring theme during Feb. 16 oral argument on James' appeal.

A California appeals court reversed a lower court’s decision to delay a state agency’s enforcement of California Privacy Rights Act (CPRA) regulations Friday.

California’s 3rd District Court of Appeal vacated the June decision of the California Superior Court in Sacramento, which had granted a California Chamber of Commerce (CalChamber) petition and stayed any California Privacy Protection Agency (CPPA) rules for 12 months after they become final. The lower court must “enter a new order denying such relief and otherwise considering any non-moot issue concerning the propriety of compelling more prompt development of regulations,” ruled the appeals court in case C099130. “Assuming no such issue remains, the superior court shall otherwise enter judgment in favor of the Agency and against the Chamber.”

The privacy agency could have started enforcing CPRA rules July 1, but the lower court’s decision meant rules adopted March 29, wouldn’t take effect for one year. “Because there is no ‘explicit and forceful language’ mandating that the Agency is prohibited from enforcing the Act until (at least) one year after the Agency approves final regulations, the trial court erred in concluding otherwise,” wrote 3rd District Justice Elena Duarte.

“We are pleased with the decision,” said CPPA Executive Director Ashkan Soltani. “This ruling ensures all aspects of the regulations adopted by the California Privacy Protection Agency last year are again enforceable, just as the voters intended when they enacted Proposition 24.” CPPA Enforcement Deputy Director Michael Macko added, “The California voters didn’t intend for businesses to pick and choose which privacy rights to honor.” Agency enforcers stand “ready to take it from here,” he said. CalChamber didn't comment by our deadline.

LTD Broadband asked the U.S. Court of Appeals for the D.C. Circuit to review the FCC’s rejection of its long-form application for Rural Digital Opportunity Fund (RDOF) support, as expected.

LTD challenged the FCC’s Dec. 4 order denying LTD’s application for review of the Wireline Bureau’s decision to reject the company’s application. “LTD asks that the Court hold the Order unlawful and set it aside,” said the company’s petition, which was posted by the court Wednesday. The FCC didn't immediately comment.

Appellant AT&T and Los Altos, California, seek an order dismissing AT&T’s appeal over the installation of small cells in the city’s rights-of-way, said their stipulated motion Friday (docket 22-16432) in the 9th U.S. Circuit Court of Appeals.

The appeal was docketed in the 9th Circuit in September 2022 but held in abeyance while the parties attempted several rounds of mediation.

The dispute dates to January 2020 when AT&T sued under Section 332 of the Telecommunications Act to challenge the city's 2019 denial of its applications to install 12 small cells on existing utility poles in the city’s rights of way. Among AT&T's issues on appeal was whether the district court erred in dismissing the company's claims as moot because the city changed its wireless ordinances after the litigation began, forcing AT&T to reapply for the small cells.

The FCC's recently adopted rules defining "digital discrimination of access" violate the Administrative Procedures Act, said the Minnesota Telecom Alliance in a suit filed Tuesday against the agency in the 8th U.S. Circuit Court of Appeals. Assuming "unprecedented authority," the FCC seeks to "empower itself to micromanage a host of legitimate business practices, including network buildout decisions, pricing, promotions, advertising, contract renewal, and customer service, the group said. The suit follows a similar suit filed by the U.S. Chamber of Commerce in the 5th Circuit.

The U.S. Supreme Court set oral argument for March 18 in Murthy v. Missouri, the case in which the government is seeking to vacate the injunction that bars officials from the White House and four federal agencies from coercing social media companies to moderate their content, said a text-only docket entry Monday (docket 23-411).

SCOTUS granted the government’s cert petition Oct. 20 over the strong objections of Justice Samuel Alito. It also granted the government’s request for a full stay of the injunction, pending the court’s resolution of the case.

The U.S. Chamber of Commerce, the Texas Association of Business and the Longview (Texas) Chamber of Commerce sued the FCC in the 5th U.S. Circuit Court of Appeals over the agency's rules defining "digital discrimination of access." The rules were adopted by a 3-2 vote during a November agency meeting. "The Order purports to implement" part of the Infrastructure Investment and Jobs Act "by adopting a definition of 'digital discrimination of access' to broadband internet service that encompasses '[p]olicies or practices, not justified by genuine issues of technical or economic feasibility,' that result in disparate treatment or disparate impact," the groups said in the filing. The suit, filed Friday, was posted Monday.

Connecticut low-power TV broadcaster Radio Communications Corp. wants the U.S. Court of Appeals for the D.C. Circuit to overturn an FCC order creating a window for certain LPTV stations to upgrade to Class A status. “Review is required” because the FCC’s implementation of the Low-Power Protection Act “fails to protect, in a very substantial manner, Low Power Television stations and licenses (LPTV), and the newly created Class A stations, as required by Congress,” said a petition for review filed with the D.C. Circuit Jan. 10 and posted Thursday. The order, parts of which will take effect Feb. 9, would open a one-year window only for LPTV stations that broadcast a minimum of 18 hours a day, carry three hours per week of local programming and are located in markets of 95,000 households or fewer -- and that already met those requirements for the 90 days prior to the LPPA's Jan. 5, 2023, approval by Congress. The petition asks the court to review the order on an expedited basis, stay it, find it unlawful and rule that RCC isn’t precluded from applying for the window, that program content can’t be used to deny Class A licenses and that Class A stations can assert must-carry in their markets.

The 4th U.S. Circuit Court of Appeals sent back to district court a U.S. Chamber of Commerce challenge of Maryland’s digital ad tax. In an opinion Wednesday, the appeals court agreed with the U.S. District Court in Baltimore that the Tax Injunction Act (TIA) prevents federal courts from reviewing the tax itself but disagreed that a decision on a related pass-through ban was moot.

The district court had dismissed the challenge to the tax’s ban on passing through the tax’s costs to consumers due to a state trial court that ruled as unconstitutional the entire act establishing the tax. But the Maryland Supreme Court later overturned that decision.

The trial court’s declaratory judgment didn’t “necessarily moot this case because there was an impending appeal which could (and ultimately did) vacate the judgment, making the federal case live again,” wrote 4th Circuit Judge Henry Floyd: The challenge to the pass-through ban “is unquestionably live now that the Maryland Supreme Court has vacated the judgment that had declared the Act unconstitutional.”

The 4th Circuit disagreed with the Chamber that the appeals court should resolve the challenge itself. "The district court in the first instance should decide whether the pass-through provision restrains speech and, if so, whether it passes constitutional muster,” wrote Floyd.

The Chamber and Maryland’s attorney general office didn’t immediately comment.

U.S. District Judge Algenon Marbley for Southern Ohio in Columbus granted NetChoice’s motion for a temporary restraining order blocking Ohio Attorney General Dave Yost (R) from enforcing the state’s Parental Notification by Social Media Operators Act when it takes effect Jan. 15, said the judge’s signed opinion and order Tuesday (docket 2:24-cv-00047).

NetChoice is challenging the constitutionality of the statute on First and 14th amendment grounds, and the judge found that NetChoice has standing to bring its claims on behalf of its member companies and Ohio minors.

It’s unlikely that the government will be able to show that the statute “is narrowly tailored to any ends that it identifies,” said the opinion and order. Foreclosing minors under 16 from accessing all content on websites that the statute purports to cover, absent affirmative parental consent, “is a breathtakingly blunt instrument for reducing social media’s harm to children,” it said.

The U.S. Supreme Court set Feb. 26 oral argument in NetChoice's and the Computer & Communications Industry Association's tandem First Amendment challenges to the Florida and Texas social media content moderation laws, said text-only entries Friday in dockets 22-277 and 22-555.

The Constitution’s free speech right “protects the editorial discretion of websites and digital services from government intervention,” said CCIA President Matt Schruers in a statement Friday. Content moderation isn’t only “an essential trust and safety function,” it’s also “a First Amendment-protected activity,” he said. “After years of litigation, CCIA looks forward to having our constitutional challenges heard in the Supreme Court.”

NetChoice didn't immediately comment, nor did the Republican attorneys general of Florida and Texas.