Microsoft's and OpenAI's generative AI (GenAI) tools rely on large-language models “that were built by copying and using” millions of New York Times copyrighted news articles, in violation of the Copyright Act, the Digital Millennium Copyright Act and other statutes, alleged the NYT’s complaint Wednesday (docket 1:23-cv-11195) in U.S. District Court for Southern New York in Manhattan.

Through Microsoft’s Bing Chat, recently rebranded as Copilot, and OpenAI’s ChatGPT, the two companies “seek to free-ride” on NYT’s “massive investment in its journalism by using it to build substitutive products without permission or payment,” said the seven-count, 69-page infringement complaint. It seeks a permanent injunction, plus statutory damages and compensatory damages and restitution.

Microsoft and OpenAI “have refused to recognize” U.S. copyright protections, said the complaint. Their GenAI tools can generate output that “recites” NYT content verbatim, “closely summarizes it, and mimics its expressive style, as demonstrated by scores of examples,” it said. Microsoft and OpenAI didn't immediately comment.

The Insurance Marketing Coalition seeks 11th U.S. Circuit Appeals Court review of the FCC’s Dec. 18 order for implementing rules under the Telephone Consumer Protection Act to target and eliminate illegal robotexts, said IMC’s petition Thursday (docket 23-14125).

The order exceeds the FCC’s statutory jurisdiction or authority, and was adopted “without observance of procedure required by law,” it said. IMC wants the 11th Circuit to vacate the order, said the petition.

The order imposes several measures, including codifying that the national do not call registry’s protections apply to text messages. IMC is filing this "protective petition for review now out of an abundance of caution," said the coalition. It will file a second petition for review when the order is published in the Federal Register, it said.

The 5th U.S. Circuit Court of Appeals should vacate the FCC’s Oct. 25 declaratory ruling that authorizes funding for Wi-Fi service and equipment on school buses under the commission’s E-rate program, said Maurine and Matthew Molak in a petition for review Wednesday (docket 23-60641). The Molaks said in the filing that the ruling will increase the E-rate program's “outlays” and “thereby directly increase" the amount of the federal universal service charge they pay each month as a line-item on their phone bill to fund E-rate costs.

The Molaks also have “a special interest in this matter” as co-founders of David’s Legacy Foundation, a nonprofit dedicated to the memory of their late son, said the petition. Their foundation is "committed to ending cyberbullying" through education, legislation and legal action, it said. The ruling “undermines that crucial mission by enabling unsupervised social-media access by children and teenagers” on school buses, it said.

The FCC didn't violate the nondelegation doctrine through its use of the Universal Service Administrative Co. to calculate quarterly USF contribution factors and administer USF programs, a federal court ruled Thursday. In denying Consumers' Research's challenge of the FCC contribution factor (see 2306220062), the 11th Circuit U.S. Court of Appeals noted that "all USAC action is subordinate to the FCC, and the FCC retains ultimate decision-making power."

The court also said that Congress "laid out the principles the FCC must follow in bringing universal service to our nation" under Communications Act Section 254, which "provides an intelligible principle and therefore passes constitutional muster." Judge Charles Wilson wrote the opinion; Judges Kevin Newsom and Barbara Lagoa concurred. Consumers' Research and the FCC didn't immediately comment.

The U.S. Supreme Court, with Justice Samuel Alito dissenting, denied the motion of Robert F. Kennedy Jr. to intervene in Murthy et al v. Missouri et al (docket 23-511), the SCOTUS review of the injunction that bars officials from the White House and four federal agencies from coercing or significantly encouraging social media to moderate their content. The injunction is stayed, pending the court’s resolution of its review.

The government petitioners, and the petition's respondents, including the Republican attorneys general of Missouri and Louisiana, all opposed Kennedy’s motion to intervene, partly on the argument that the motion was time-barred, but also on the basis that SCOTUS rarely grants motions to intervene.

Alito earlier dissented from the SCOTUS decision granting the government’s cert petition to review the injunction. In his dissent Monday, Alioto said that allowing intervention wouldn’t “unduly prejudice” the parties, but the denial of intervention may cause Kennedy “irreparable harm.”

Montana is enjoined from enforcing SB-419, its statewide TiTtok ban, when it takes effect Jan. 1, said an order late Thursday (docket 9:23-cv-00061) from U.S. District Judge Daniel Molloy in Missoula, granting a motion for a preliminary injunction from TikTok and several TikTok influencers.

Despite the state’s attempt to defend SB-419 as a consumer protection bill, the current record “leaves little doubt” that Montana’s legislature and attorney general “were more interested in targeting China’s ostensible role in TikTok than with protecting Montana consumers,” said the order. The plaintiffs have shown a likelihood of success on the merits of each claim, and a preliminary injunction on the effective date of SB-419 is warranted, it said.

The Kennedy plaintiffs in the First Amendment lawsuit that was consolidated with Missouri v. Biden in U.S. District Court for Western Louisiana in Monroe seek to intervene as respondents in the government’s U.S. Supreme Court challenge of the social media injunction against the White House and four federal agencies, said their motion Thursday (docket 23-411). The government's petition was granted cert review Oct. 20. The plaintiffs are Robert F. Kennedy Jr., the Children’s Health Defense nonprofit and Louisiana resident Connie Sampognaro, described in the motion as “an avid consumer of online health information.”

The Kennedy plaintiffs moved for an injunction against the same government defendants named in the injunction imposed July 4 by U.S. District Judge Terry Doughty, but Doughty held that motion in abeyance pending the appeal in Missouri v. Biden, said the motion. The Kennedy plaintiffs thus “were left with no appealable order,” it said. They weren’t before the 5th Circuit U.S. Court of Appeals, and couldn’t seek cert in the Supreme Court.

The Kennedy plaintiffs “remain stranded in the district court,” even though their rights will be “as fully adjudicated” by SCOTUS as those of the Missouri v. Biden plaintiffs, said the motion. “Intervention is warranted for that reason alone,” it said. The government petitioners and respondents all "have stated that they do not consent to this motion to intervene," it said.

The U.S. Supreme Court late Friday afternoon granted the government’s application for a full stay of the injunction that bars officials from the White House, the surgeon general’s office, the FBI, the Centers for Disease Control and Prevention and the Cybersecurity and Infrastructure Security Agency from coercing or significantly encouraging social media companies to moderate their content.

SCOTUS issued the docketing statement (docket 23-411) just as the administrative stay imposed by Justice Samuel Alito was about to expire at 5 p.m. EDT. Alito is the circuit judge for the 5th U.S. Circuit Court of Appeals, where the injunction was modified Oct. 3.

SCOTUS also granted the government’s request to expedite the appeal by construing the stay application as a cert petition, and it granted that petition. Justices Clarence Thomas and Neil Gorsuch joined Alito in dissenting from the grant of the stay application, said a text-only entry in docket 23-411. The full stay will terminate with the court’s resolution of the cert petition, said the docketing statement.

U.S. Supreme Court Justice Samuel Alito extended by a week, to Oct. 20 at 5 p.m. EDT, the administrative stay of the injunction that bars dozens of Biden administration officials from coercing or significantly encouraging the social media platforms to moderate their content, said Alito’s text-only order Friday afternoon (docket 23A243).

The government’s emergency application asks SCOTUS to fully stay the injunction pending the disposition of its forthcoming cert petition to vacate the injunction entirely. The Republican attorneys general of Louisiana and Missouri, plus the five individual social media user plaintiffs oppose the application. The injunction covers officials from the White House, the surgeon general’s office, the FBI, the Centers for Disease Control and Prevention and the Cybersecurity and Infrastructure Security Agency.

The 5th U.S. Circuit Court of Appeals originally vacated CISA officials from the scope of the injunction for lack of evidence that they coerced the social media platforms, then reinstated them on the GOP AGs’ petition for rehearing. Without Alito’s extension, the administrative stay that the 5th Circuit imposed Oct. 3 would have expired sometime late Friday. Alito is SCOTUS circuit judge for the 5th Circuit.

The U.S. Supreme Court granted the cert petition Friday (docket 22-1219) of three fishing companies, Relentless, Huntress and Seafreeze Fleet, that seek to overturn the Chevron doctrine because the Commerce Department is requiring them to pay the costs of carrying federal inspectors onboard their vessels.

SCOTUS directed the clerk to establish a briefing schedule that will allow the Relentless case to be argued “in tandem” with Loper Bright Enterprises v. Raimondo (docket 22-451) in the January argument session, said the court’s order list. The Loper Bright petitioners also are asking for Chevron deference to be “jettisoned.”

DOD is using Ligado spectrum for previously undisclosed systems and without compensating the company, and red flags Defense raised about possible GPS interference from Ligado spectrum use were a pretext to cover that up, the satellite operator said in a U.S. Court of Federal Claims complaint it filed Thursday night.

Calling it "the largest uncompensated taking of private property by our nation’s government in modern times," Ligado said it has been denied "tens of billions of dollars" worth of spectrum rights. Named as defendants are Defense, Commerce and NTIA. Ligado said they "improperly took steps to stymie implementation of the April 2020 FCC Order and to prevent Ligado from using the Company’s spectrum for terrestrial services, from realizing the value of the Company’s FCC license and newly modified [ancillary terrestrial component] authority, from securing a return on the Company’s immense investments, and from discovering DOD’s use of Ligado’s property."

It said Defense assertions about possible GPS interferference "were intended as a smokescreen to cover up for DOD’s unjust taking and use of Ligado’s authorized spectrum without compensation." Commerce and Defense didn't immediately respond Friday morning to requests for comment.

The government returned to the U.S. Supreme Court Thursday with a renewed plea for the court to grant its emergency application for a full stay of the injunction barring officials from the White House, the surgeon general’s office, the FBI, the Centers for Disease Control and Prevention -- and now extended to the Cybersecurity and Infrastructure Security Agency -- from coercing or significantly encouraging social media companies to moderate their content.

The government wants the stay to remain in effect “pending the timely filing and disposition” of its cert petition to vacate the injunction entirely, said its third supplemental memorandum in support of the emergency application (docket 23A243). But it didn’t commit to filing the cert petition by Oct. 13, as it did in its filing before the 5th U.S. Circuit Court of Appeals decision on rehearing Tuesday expanding the injunction to include CISA officials.

In light of the 5th Circuit’s Tuesday grant of a 10-day administrative stay of the injunction through Oct. 13, the government asks that SCOTUS extend that administrative stay if it hasn’t acted on the emergency application by that date, said Thursday’s memorandum, without proposing how long that extended administrative stay should last.

The U.S. Supreme Court granted the cert petitions of NetChoice and the Computer & Communications Industry Association challenging the constitutionality of the Florida (docket 22-227) and Texas (docket 22-555) social media laws on First Amendment grounds, said the court’s order list Friday. NetChoice and CCIA argue that the Florida and Texas statutes are unconstitutional under the First Amendment, plus they violate the commerce clause, the equal protection and due process clauses of the 14th Amendment, and are preempted by Section 230.

It’s “high time” that the Supreme Court “resolves whether governments can force websites to publish dangerous content,” said CCIA President Matt Schruers in a statement. The internet “is a vital platform for free expression, and it must remain free from government censorship,” said Litigation Director Chris Marchese, “We are confident the Court will agree.” The Republican attorneys general of Florida and Texas didn’t immediately comment.

The FCC has 90 days to either complete the 2018 quadrennial review or show cause why the NAB’s petition for mandamus shouldn’t be granted, said an order from the U.S. Court of Appeals for the D.C. Circuit Thursday evening. The order doesn’t grant NAB’s petition for mandamus but defers it until the 90-day period. Broadcast industry officials told us the court’s urging the agency to soon complete the 2018 QR is the result they wanted. The FCC didn’t immediately comment, but the agency had argued that its delay in completing the QR was justified.

U.S. District Judge Beth Labson Freeman for Northern California in San Jose granted NetChoice’s motion for a preliminary injunction blocking California Attorney General Rob Bonta (D) from enforcing the state’s Age Appropriate Design Code (AB-2273), finding that California hasn't shown that the challenged statute "passes constitutional muster," said her signed order Monday (docket 5:22-cv-08861).

NetChoice has shown that it’s likely to succeed on the merits of its argument that the law’s provisions violate the First Amendment and the Constitution's dormant commerce clause, and is preempted by the Children’s Online Privacy Protection Act and Section 230 of the Communications Decency Act, said the judge. The law requires online providers to create a data protection impact assessment report identifying, for each offered online service, product or feature likely to be accessed by children under 18, any risk of material detriment to children arising from the provider’s data management practices.

NetChoice, which publicized Freeman’s decision, said in a statement that it looks forward “to seeing the law permanently struck down and online speech and privacy fully protected.” NetChoice had argued that AB-2273 regulates speech because it restricts how, under what conditions, and to whom content may be published, and it indisputably regulates speech based on content. Bonta’s office didn’t immediately comment.

Solicitor General Elizabeth Prelogar wants the U.S. Supreme Court to stay the preliminary injunction that bars Biden administration officials from coercing social media companies to moderate their content, pending the disposition of the government’s SCOTUS cert petition, said her application Thursday afternoon (docket 23A243). The government plans to file its cert petition by Oct. 12, said the application.

The injunction was imposed July 4 by U.S. District Judge Terry Doughty for Western Louisiana, and was affirmed and vacated in part and modified Sept. 8 by the 5th U.S. Circuit Court of Appeals.

The case “concerns an unprecedented injunction” that installs Doughty as “the superintendent” of the executive branch’s “communications with and about social-media platforms,” said the application. The district court’s injunction was stayed during the 5th Circuit proceedings, and the 5th Circuit extended an administrative stay through Monday to allow the government to seek SCOTUS relief.

If allowed to take effect Tuesday, the injunction “would impose grave and irreparable harms on the government and the public,” said the application. But a continued stay “would impose no cognizable harm on respondents,” who are five individual social-media users and the attorneys general of Louisiana and Missouri, it said. “At a minimum,” SCOTUS should stay the injunction “insofar as it applies beyond any content posted by the individual respondents themselves,” it said.

DOJ, in an emergency motion Monday, asked the 5th U.S. Circuit Court of Appeals for a partial stay of the social media preliminary injunction entered July 4 by the U.S. District Judge Terry Doughty, to the extent that Doughty’s injunction is now “inconsistent” with the 5th Circuit’s Friday ruling, pending the issuance of the 5th Circuit’s mandate. The government, in the alternative, asked the 5th Circuit to issue its mandate immediately, said the emergency motion. The mandate without the court’s intervention isn’t scheduled to issue until Oct. 31, it said.

The 5th Circuit’s opinion Friday vacated the injunction as it had applied to officials in three agencies, keeping the restrictions intact on officials with the White House, the Office of the Surgeon General, the FBI and the Centers for Disease Control and Prevention. It also stripped the injunction of all but one of its prohibitions, barring officials from coercing social media platforms to moderate their content.

One of the requested forms of relief “is necessary to avoid allowing the preliminary injunction entered by the district court to take effect” when the 5th Circuit’s 10-day administrative expires Sept. 18, even though the 5th Circuit concluded the injunction should be vacated in part and the remaining portion should be modified. It asked the 5th Circuit to act on the motion by Wednesday “because the nature of the injunction that will take effect upon the expiration of the administrative stay will inform any request for relief the government may file in the Supreme Court,” it said. Either form of relief would avoid the "improper result of allowing the district court’s preliminary injunction to regain effect even after having been held invalid" by the 5th Circuit, it said.

U.S. District Judge Terry Doughty for Western Louisiana didn’t err in determining that officials from the White House, the Surgeon General, the Centers for Disease Control and Prevention and the FBI “likely coerced or significantly encouraged social-media platforms to moderate content, rendering those decisions state actions,” in potential violation of the First Amendment, said the 5th U.S. Circuit Court of Appeals in a late-Friday opinion (docket 23-30445).

The 5th Circuit affirmed Doughty’s injunction on those officials, but reversed it, for lack of sufficient evidence of coercion, for officials from the National Institute of Allergy and Infectious Diseases, the Cybersecurity and Infrastructure Security Agency and the State Department.

The 5th Circuit agreed with the government that Doughty’s injunction was overbroad and vague. It stripped the injunction of nine of its 10 prohibitions, leaving only prohibition six, with modifications. That prohibition, as rewritten, bars the government from coercing or significantly encouraging social-media companies “to remove, delete, suppress, or reduce” content containing protected free speech. It also deleted Doughty’s eight carveouts for permitted government conduct, finding that they didn’t solve the injunction’s “clarity and scope problems.”

The 5th Circuit denied as moot the government’s motion for a stay pending appeal. But it granted the government’s request to extend the administrative stay for 10 days, to Sept. 18, pending an application to the U.S. Supreme Court.

The U.S. District Court for Western Arkansas in Fayetteville, in a late-Thursday opinion and order, granted NetChoice’s motion for a preliminary injunction blocking Arkansas Attorney General Tim Griffin (R) from enforcing SB-396, the state’s social media age verification law, when it takes effect Friday.

The court found that NetChoice “has standing to assert a constitutional challenge” to the statute “on behalf of its members and its members’ users,” said the opinion and order (docket 5:23-cv-05105). It granted the injunction, it said, based on its finding that NetChoice’s arguments “are likely to succeed on the merits.”

NetChoice is pleased that the court “sided with the First Amendment and stopped Arkansas’ unconstitutional law from censoring free speech online and undermining the privacy of Arkansans, their families and their businesses as our case proceeds,” said Chris Marchese, director-NetChoice Litigation Center, in a statement. “We look forward to seeing the law struck down permanently.” AG Griffin’s office didn’t immediately comment.

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.”

The U.S. “has grown increasingly concerned about espionage and other threats from Chinese-owned telecommunications companies,” Katsis wrote. He noted that after the FCC ordered Pacific Networks and ComNet to show cause in 2020 why their authorizations shouldn’t be revoked Team Telecom weighed in, finding that “China’s Ownership” of the companies “raised ‘significant concerns’ that the carriers would be ‘forced to comply with Chinese government requests, including requests for communications intercepts.’”

The carriers contend that the FCC “unreasonably found a threat to national security,” Katsis said. “But the Commission meticulously explained -- over the span of 62 pages -- how the carriers’ domestic operations threaten national security,” he said. “We cannot second-guess the FCC’s judgment that allowing China to access this information poses a threat to national security,” the court found. The FCC “adequately explained its decision to revoke Pacific Networks’ and ComNet’s authorizations, and it afforded adequate process to the carriers,” Katsis wrote: “We therefore deny the petition for review.” Circuit judges Harry Edwards and Karen Henderson joined the decision. The judges were on the same panel that last year upheld the FCC's revocation of China Telecom Americas’ domestic and international authorities.

U.S. Supreme Court Justice Elena Kagan, in a text-only docket entry Wednesday (docket 23A78), denied Epic Games’ emergency July 25 application to vacate the stay of the appellate mandate issued by the 9th U.S. Circuit Court of Appeals. The stay is preventing enforcement of the injunction that Epic won in the district court to enjoin Apple from imposing its anti-steering rules against mobile app developers doing business in the App Store. Kagan is Supreme Court justice for the 9th Circuit.

Epic said the rules prohibit developers from directing iPhone users to less-expensive ways to pay for digital goods they use in their apps. It said the rules’ main effects deprive consumers of accurate information that would save them money, causing consumers harm for each day the injunction can’t be enforced.

Apple argued that the 9th Circuit’s “discretionary decision” to stay its own mandate pending Apple’s forthcoming cert petition at the Supreme Court applied “the correct legal standard” and didn’t warrant SCOTUS “intervention.” Neither Epic nor Apple immediately commented.

The 5th U.S. Circuit Court of Appeals, in a late-Friday decision (docket 22-20454), affirmed the district court’s granting of summary judgment for Crown Castle against the city of Pasadena, Texas, and imposing a permanent injunction prohibiting the city’s use of its design manual to prevent Crown Castle’s installation of a small cell, distributed antenna systems network.

The district court correctly found that Section 253 of the Telecommunications Act preempted the city’s small cell node regulations, as they violated the TCA by preventing Crown Castle from providing telecommunications services, said the decision.

The city wrongly maintains that Crown Castle isn’t a telecommunications provider and isn’t subject to the protections of Section 253, said the 5th Circuit. “To the contrary,” Crown Castle is a telecommunications provider under the TCA, it said. The city’s theory that Crown Castle didn’t provide services itself, but merely agreed to install small cell nodes to allow T-Mobile to expand T-Mobile’s telecommunications service, is “untenable,” it said.

T-Mobile’s MetroPCS prevailed against the California Public Utilities Commission in a dispute about USF surcharges at the U.S. District Court for Northern California (case 3:17-cv-05959-JD).

The wireless company sued the CPUC in 2017 to challenge California's assessing USF payments for prepaid phone service. MetroPCS said the 2014 California Prepaid Act and related CPUC resolutions imposing USF surcharges on prepaid wireless are unlawful and preempted. MetroPCS claimed the CPUC unlawfully treated two-thirds of MetroPCS revenue as intrastate.

"The Court concludes that the CPUC’s 2017 and 2018 resolutions are preempted as applied to MetroPCS because they would impose surcharges on revenues from services that are not subject to surcharge, in violation of federal law,” wrote Judge James Donato in Friday's decision. "The CPUC may address an audit and related issues in an agency proceeding, as appropriate."

T-Mobile and the CPUC didn't immediately comment.

The 9th U.S. Circuit Court of Appeals, in a Friday order, denied the FTC’s emergency motion for a “temporary pause” in the consummation of Microsoft’s Activision Blizzard buy. Its denial permitted the district court’s temporary restraining order that had enjoined the merger from being consummated to expire at 11:59 p.m. PDT Friday night.

The order cited the 9th Circuit’s 1984 decision in FTC v. Warner Communications as defining the standard by which the commission may obtain a preliminary injunction.

The order said the existing briefing schedule remains in effect on the FTC’s 9th Circuit appeal of the district court’s July 10 denial of its motion for an injunction to block the Microsoft/Activision transaction from going through. The commission’s mediation questionnaire is due Monday and its opening brief is due Aug. 9. The Microsoft/Activision answering brief is due Sept. 6, and the FTC’s optional reply is due 21 days later.

Action is needed by 11:59 p.m. PDT Friday night on the FTC’s emergency motion before the 9th U.S. Circuit Court of Appeals for an injunction pending appeal blocking Microsoft from consummating its Activision Blizzard buy, said the agency’s motion late Thursday evening (docket 23-15992). Without 9th Circuit action on the emergency motion, Microsoft/Activision may close their deal anytime after 11:59 p.m. PDT Friday when the district court’s modified temporary restraining order expires, said the FTC.

Consummation of the proposed deal “would irreversibly alter the status quo and, if done before the merits of the FTC’s appeal are heard, would irreparably harm the FTC’s ability to order effective relief for the public should the deal prove to be in violation of the antitrust laws,” said the emergency motion. With that motion, the FTC seeks a “temporary pause on consummation of the deal” to give the 9th Circuit time “to consider whether the FTC’s appeal is meritorious and a preliminary injunction should issue,” it said.

Microsoft and Activision didn’t immediately comment. Their counsel told the FTC they plan to respond to the motion, said the FTC's filing.

The office of Louisiana Attorney General Jeff Landry (R) said it’s unfazed with the temporary stay that the 5th U.S. Circuit Court of Appeals granted DOJ Friday afternoon to block enforcement of the preliminary injunction barring dozens of Biden administration officials from conversing with social media platforms about their content moderation activities,

The 5th Circuit “routinely grants administrative stays when injunctions are issued, as they did today,” emailed Landry’s office. “We are grateful they expedited the schedule so that we may continue to vigorously defend the injunction,” said the office. Nothing in the 5th Circuit’s order gives the government the ability to “muzzle its citizens,” it said.

The office of Missouri AG Andrew Bailey, Landry’s co-lead plaintiff in the case, didn’t respond to requests for comment.

The 5th U.S. Circuit Court of Appeals granted DOJ a temporary administrative stay of the preliminary injunction imposed July 4 by U.S. District Judge Terry Doughty for Western Louisiana in Monroe to prevent dozens of Biden administration officials from conversing with social media platforms for the purposes of content moderation, said the court’s Friday afternoon order (docket 23-30445).

The 5th Circuit ordered DOJ’s appeal expedited to the next available oral argument calendar. DOJ’s opposed motion to stay Doughty’s injunction pending appeal is deferred to the oral argument merits panel that receives the case, said the order.

Doughty earlier in the week denied DOJ’s motion to stay the injunction pending the 5th Circuit appeal. DOJ argued the government would be irreparably harmed absent a stay, but Doughty, a President Donald Trump appointee, ruled the plaintiffs’ First Amendment free speech rights “by far” outweigh the defendants’ interests. The lead plaintiffs are the Republican attorneys general of Louisiana and Missouri, who didn’t immediately comment on the 5th Circuit’s temporary stay.

The FTC’s “claimed emergency” in its Thursday evening motion before the 9th U.S. Circuit Appeals Court for an injunction pending appeal blocking Microsoft from consummating its Activision Blizzard buy “is entirely of its own creation,” Microsoft and Activision told the 9th Circuit in an opposition filing Friday (docket 23-15992). The FTC asked the 9th Circuit to act on the motion by 11:59 p.m. PDT because that’s when the district court’s temporary restraining order enjoining the merger expires.

The FTC acted “for the better part of a year and a half as though this case was not an emergency necessitating federal court intervention,” said Microsoft and Activision. It’s “hard to comprehend” the FTC’s arguments for why the emergency motion couldn’t be filed earlier than well after the close of business on Thursday evening, they said. (The docket report shows the motion was filed at 7:36 p.m. PDT.) The 9th Circuit shouldn’t mistake the FTC’s “litigation gamesmanship” for an emergency meriting the court’s “deviation from the ordinary appellate process,” they said.

U.S. District Judge Jacqueline Scott Corley for Northern California in San Francisco denied the FTC’s motion for a preliminary injunction to block Microsoft’s Activision Blizzard buy from being consummated, said her signed opinion Tuesday (docket 3:23-cv-02880). The FTC hasn’t shown that it’s likely to succeed on its assertion that Microsoft/Activision “will probably pull” Call of Duty from Sony PlayStation, or that its ownership of Activision content “will substantially lessen competition in the video game library subscription and cloud gaming markets,” said Corley’s heavily redacted opinion.

The FTC appears to contend “it need only show the combined firm would have a greater ability and incentive to foreclose Call of Duty from its rivals than an independent Activision,” said Corley’s opinion. But that assertion “ignores the text of Section 7" of the FTC Act, it said: “It is not enough that a merger might lessen competition -- the FTC must show the merger will probably substantially lessen competition.”

U.S. District Judge Terry Doughty for Western Louisiana in Monroe denied DOJ’s motion to stay his July 4 injunction pending an appeal to the 5th U.S. Circuit Court of Appeals, said his memorandum ruling Monday (docket 3:22-cv-01213). The injunction bars dozens of Biden administration defendants from conversing with social media platforms for the purpose of suppressing right-leaning content.

The defendants maintain they will be irreparably injured absent a stay, and that the balance of the equities weighs heavily in the defendants’ favor of granting a stay, but Doughty, a President Donald Trump appointee, disagrees, said his memorandum ruling. The plaintiffs’ First Amendment free speech rights “by far” outweigh the defendants’ interests, it said.

DOJ, in its motion for a stay, had asked Doughty to rule on it by noon CDT Monday, and he largely obliged with the request. Doughty gave the plaintiffs until 8 a.m. CDT to file an opposition, and their opposition brief was filed Sunday. DOJ didn't immediately comment.

DOJ, within hours of the denial of its motion for a stay in the injunction that bars dozens of Biden administration officials from conversing with social media companies for the purpose of suppressing right-leaning content, filed an emergency motion Monday at the 5th U.S. Circuit Court of Appeals (docket 23-30445) for a stay pending appeal.

The 5th Circuit, “at a minimum,” should stay the injunction “to the extent it extends beyond actions specifically targeting content posted by plaintiffs,” said DOJ’s motion. The 5th Circuit should also grant an immediate administrative stay “to permit the orderly briefing and disposition of this motion,” it said. If the 5th Circuit declines to grant a longer stay, it should at a minimum stay the injunction for 10 days to permit the U.S. Supreme Court “to consider an application for a stay, should the Solicitor General elect to file one,” it said.

DOJ seeks a ruling by noon CDT Monday for U.S. District Judge Terry Doughty for Western Louisiana in Monroe to stay the preliminary injunction he ordered July 4 to bar most of the nearly 70 Biden administration defendants in the case brought by the Republican attorneys general of Louisiana and Missouri from communicating with social media platforms about content moderation, said DOJ’s motion Thursday (docket 3:22-cv-01213).

The motion asks the court to stay the injunction pending appeal. If Doughty denies the instant motion, it said DOJ seeks an administrative stay for seven days to allow time for the 5th U.S. Circuit Court of Appeals to consider a motion to stay and request for administrative stay. The Republican AGs oppose both forms of requested relief, it said. Their lawsuit alleges Biden administration officials coerced and collaborated with social media companies to control the public narrative about COVID-19 vaccine and mask mandates and results from the 2020 election.

DOJ is appealing to the 5th U.S. Circuit Court of Appeals the preliminary injunction order signed Tuesday by U.S. District Court Judge Terry Doughty for Western Louisiana in Monroe, enjoining roughly five dozen Biden administration defendants from conversing with social media companies about perceived content suppression, said DOJ’s notice of appeal late Wednesday (docket 3:22-cv-01213).

Doughty on the July 4 holiday granted Louisiana Attorney General Jeff Landry (R) and Missouri AG Andrew Bailey’s (R) request for a preliminary injunction against most of the nearly 70 federal government defendants. The complaint alleges the administration coerced and collaborated with social media companies to control public narrative about COVID-19 vaccine and mask mandates and results from the 2020 election.

A California state court delayed enforcement of California Privacy Right Act (CPRA) regulations Friday. The CPRA had required the California Privacy Protection Agency (CPPA) to start enforcing regulations implementing the sequel to the California Consumer Privacy Act (CCPA) by Saturday.

The California Superior Court in Sacramento partly granted the stay request by the California Chamber of Commerce after a hearing Friday. The final decision closely tracked with a tentative ruling released Thursday in case 34-2023-80004106-CU-WM-GDS. The parties didn't comment right away.

The court paused “the Agency’s enforcement of any Agency regulation implemented pursuant to Subdivision (d) for 12 months after that individual regulation is implemented.” That means the CPPA may start enforcing rules it finalized March 29, 2023, on that date in 2024, said the court: The agency can start enforcing any rules to come 12 months after they’re finalized. CCPA rules will remain enforceable by the California attorney general.

The CPRA contemplated that final rules would be ready by July 1, 2022, and enforcement would begin July 1, 2023. Including the one-year-apart dates in CPRA "indicates the voters intended there to be a gap between the passing of final regulations and enforcement of those regulations,” the decision said. “The Court is not persuaded by the Agency’s argument that it may ignore one date while enforcing the other.”

The 5th U.S. Circuit Court of Appeals approved a request for an en banc rehearing of Consumers' Research's challenge of the FCC's method for funding the USF. In March, a three-judge panel ruled unanimously against Consumers' Research, saying the FCC "has not violated the private nondelegation doctrine because it wholly subordinates" the Universal Service Administrative Co., and Congress "supplied the FCC with intelligible principles when it tasked the agency with overseeing" USF.

Arkansas’ SB-396, the state’s social media age verification statute that Gov. Sarah Huckabee Sanders (R) signed into law April 12, “is the latest attempt in a long line of government efforts to restrict new forms of expression based on concerns that they harm minors,” alleged NetChoice in a complaint Thursday (docket 5:23-cv-05105) in U.S. District Court for Western Arkansas in Fayetteville. The lawsuit asks the court to declare the statute unconstitutional and enjoin Attorney General Tim Griffin (R) from enforcing it.

Government efforts to restrict minors from accessing books, movies, television, rock music, video games and the internet, including by requiring parental consent to do so, “have reliably and repeatedly been struck down, especially when (as is often the case) they impede the First Amendment rights of adults too,” said the complaint. SB-396 “should meet the same fate,” it said. Griffin's office didn't immediately comment.

OpenAI and Microsoft use AI products, “integrated into every industry,” to collect, store, track, share and disclose the private information of millions of users, alleged a privacy class action Wednesday (docket 3:23-cv-03199) in U.S. District Court for Northern California in San Francisco. The 16 plaintiffs are listed by their initials “to avoid intrusive scrutiny,” plus any “potentially dangerous backlash,” said the complaint.

The class action alleges OpenAI, with Microsoft’s financial backing, “doubled down on a strategy to secretly harvest massive amounts of personal data from the internet, including private information and private conversations, medical data, information about children.” The scheme involved “essentially every piece of data exchanged on the internet it could take -- without notice to the owners or users of such data, much less with anyone’s permission,” it said.

The 157-page complaint seeks a variety of remedies, including injunctive relief “in the form of a temporary freeze” on the commercialization of the products at issue, until OpenAI and Microsoft can certify to the court that their products won’t bring harm to the public. The defendants didn’t immediately comment.

Amazon for years “has knowingly duped” millions of consumers into “unknowingly enrolling” in Amazon Prime, in violation of the FTC Act and the Restore Online Shoppers’ Confidence Act (ROSCA), alleged the FTC in a partially redacted fraud complaint Wednesday (docket 2:23-cv-00932) in U.S. District Court for Western Washington in Seattle. Amazon used “manipulative, coercive, or deceptive user-interface designs” called “dark patterns” to trick consumers into enrolling in automatically renewing Prime subscriptions, it said.

Amazon for years also “knowingly complicated” the Prime cancellation process, said the complaint. Under “significant pressure” from the FTC, and aware that its practices are “legally indefensible,” Amazon “substantially revamped” its Prime cancellation process for at least some subscribers shortly before the complaint was filed, the FTC said. But before that time, “the primary purpose of the Prime cancellation process was not to enable subscribers to cancel, but rather to thwart them,” it said.

The FTC seeks a permanent injunction to prevent Amazon’s future violations of the FTC Act and ROSCA, plus monetary and other relief within the court’s “power to grant,” said the complaint. Amazon didn’t immediately comment.

The FTC filed suit Monday to block Microsoft’s Activision Blizzard buy, seeking both a temporary restraining order and a preliminary injunction to enjoin Microsoft from consummating the transaction. The redacted complaint (docket 3:23-cv-02880) in U.S. District Court for Northern California in San Francisco said both remedies were necessary because Microsoft and Activision have “represented” that they may consummate the deal “at any time without any further notice” to the FTC.

The FTC’s request for a TRO is the subject of a separate emergency motion, in which the agency asks the court to enter before 8:59 p.m. PDT Thursday an order prohibiting Microsoft and Activision from completing the deal until after the court rules on the FTC’s request for a preliminary injunction, said the complaint.

The proposed transaction would be the largest in the history of the video game industry and the largest in Microsoft’s history, said the complaint. It would continue Microsoft’s “pattern of taking control of valuable gaming content,” it said. With control of Activision’s content, Microsoft would have “the ability and increased incentive to withhold or degrade Activision’s content in ways that substantially lessen competition,” it said. That lessened competition “would likely result in significant harm to consumers in multiple markets at a pivotal time for the industry,” it said.

VoIP service provider Avid Telecom “chose profit over running a business that conforms to state and federal law” by “assisting and facilitating” illegal robocall traffic on its network, alleged 48 states and the District of Columbia in a complaint Tuesday (docket 4:23-cv-00233) in U.S. District Court for Arizona in Tucson.

Avid received more than 329 notifications from the USTelecom-led Industry Traceback Group (ITG) putting it on notice that it was transmitting illegal robocalls, said the complaint. The illegal robocall traffic across Avid’s network persisted despite the 329 notifications, plus additional letters and correspondence from the ITG about needing to improve its “traffic screening procedures,” it said. Avid could have chosen “to implement effective and meaningful procedures to prevent -- or even significantly mitigate -- the perpetration of illegal behavior” onto and across its network “but chose not to do so,” it said.

The complaint alleges violations of the Telemarketing and Consumer Fraud and Abuse Prevention Act, the FTC’s Telemarketing Sales Rule and the Telephone Consumer Protection Act. Avid didn’t immediately comment.

The U.S. Supreme Court on Thursday declined to address the application of Section 230 in two terrorist-related cases, saying lawsuits against Google and Twitter failed to state “plausible” claims. Tech groups lauded victories in Gonzalez v. Google (21-1333) and Twitter v. Taamneh (21-1496) (see 2304040064). In an unsigned opinion, the high court found that “much (if not all)” of the Gonzalez complaint “seems to fail under either our decision in Twitter or the Ninth Circuit’s unchallenged holdings below.” The court found Twitter didn’t aid and abet the terror attack at issue in Taamneh. In Gonzalez, the court declined to “address the application of §230 to a complaint that appears to state little, if any, plausible claim for relief. Instead, we vacate the judgment below and remand the case for the Ninth Circuit to consider plaintiffs’ complaint in light of our decision in Twitter.”

“Countless companies, scholars, content creators and civil society organizations who joined with us in this case will be reassured by this result,” said Google General Counsel Halimah DeLaine Prado. “We'll continue our work to safeguard free expression online, combat harmful content, and support businesses and creators who benefit from the internet.”

“The Court correctly recognized the narrow posture of these cases and declined to rewrite a key tenet of U.S. Internet law, preserving free expression online and a thriving digital economy,” said Computer & Communications Industry Association President Matt Schruers. Content moderation is an “imperfect but vital tool in keeping users safe and the internet functioning,” said NetChoice Litigation Center Director Chris Marchese. “The Supreme Court’s decisions protect free speech online by maintaining Section 230.” Weakening Section 230 isn’t the proper approach to addressing dominant platforms’ role in internet users’ lives, said Public Knowledge Legal Director John Bergmayer.

The 6th U.S. Circuit Court of Appeals denied Consumers' Research's challenge of the FCC's USF 2021 Q4 contribution factor, in an opinion published Thursday in case 21-3886. A three-judge panel heard oral argument in March and is the second court to deny a challenge from the group (see 2303240049). "Congress provided the FCC with a detailed statutory framework regarding universal service," wrote Judge Karen Nelson Moore, saying Section 254 of the Communications Act "does not violate the nondelegation doctrine." The opinion also cited the Universal Service Administrative Co.'s "subordination to the FCC and its assistance with fact gathering and ministerial support" wasn't a "private-nondelegation doctrine violation." Competitive Carriers Association, NTCA and USTelecom welcomed the ruling in a joint statement: "We believe that other courts considering similar challenges should come to the same conclusion.” Consumers' Research didn't comment.

U.S. District Judge Leonie Brinkema for the Eastern District of Virginia denied, without an opinion, Google’s motion to dismiss the antitrust complaint brought by DOJ and eight states to thwart the company’s alleged monopoly control over the digital advertising market, said her signed order Friday.

Google’s March 27 motion called the complaint deficient for its failure to allege plausible relevant markets. The motion came just under two weeks after Brinkema denied Google’s motion to transfer the case to the Southern District of New York. DOJ had urged the judge to deny the motion to dismiss because it attempts to adjudicate fact-intensive market definition questions at the motion to dismiss stage and “misstates the law” on market share for Sherman Act claims.

The U.S. Appeals Court for the D.C. Circuit, in a Thursday opinion, affirmed the district court’s dismissal of the antitrust complaint brought against Meta by 47 states, plus the District of Columbia and Guam. The states had alleged that Meta’s Instagram and WhatsApp acquisitions harmed competition, as did Meta’s restrictions on app developers that linked to Facebook.

The states’ lawsuit “is not only odd, but old,” said the opinion (docket 21-7078). The litigation is odd because it concerns an industry “that has had rapid growth and innovation with no end in sight,” it said. It’s old because the states’ causes of action “accrued in 2012 when Facebook acquired Instagram and in 2014 when Facebook acquired WhatsApp,” it said. Yet the states didn’t file their complaint until December 2020, it said. The U.S. District Court for the District of Columbia held that the states’ long delays were unreasonable and unjustified as a matter of law, and the D.C. Circuit agreed.

The 9th U.S. Circuit Court of Appeals, in an opinion Monday (docket 21-16506), affirmed in part and reversed in part the district court’s judgment against Epic Games on its Sherman Act claims for restraint of trade, tying and monopoly maintenance against Apple. The panel ruled in Epic’s favor on its claim under California’s Unfair Competition Law, but against Epic on Apple’s claim for breach of contract; and against Apple on its claim for attorney fees.

When Apple opened the iPhone to third-party app developers, it created a “walled garden,” rather than an open ecosystem in which developers and users could transact freely without mediation from Apple, said the opinion. The 9th Circuit affirmed the district court’s denial of antitrust liability and its corresponding rejection of Epic’s illegality defense to Apple’s breach of contract counterclaim. But it held that the district court erred as a matter of law in defining the relevant antitrust market and in holding that a non-negotiated contract of adhesion, such as Apple’s Developer Program Licensing Agreement, falls outside the scope of Sherman Act Section 1.

The U.S. Court of Appeals for the D.C. Circuit denied the petition for writ of mandamus from Standard General, Cox Media Group and Tegna in an unpublished order Friday morning in docket 23-1084. The ruling by Judges Cornelia Pillard, Michelle Childs and Florence Pan contains few details. "Petitioners have not demonstrated that respondent has unreasonably delayed in acting on their applications," said the ruling. "Nor have they shown that respondent has a 'crystal clear' duty to rule on their applications without resort to a hearing." The ruling means the FCC’s proceeding will continue and will almost certainly extend beyond the May 22 deadline at which the deal’s financing expires, potentially ending the Standard/Tegna transaction. Standard has called for the FCC’s commissioners to force a vote on the transaction, but that is widely seen as unlikely to happen. Standard General and the FCC didn’t immediately comment.

The U.S. Court of Appeals for the D.C. Circuit dismissed the Standard/Tegna broadcasters appeal of the FCC’s hearing designation order (HDO) but said it will expedite their petition for writ of mandamus, said an order late Monday. An appeal filed after a bureau decision but before “resolution by the full Commission” is “subject to dismissal as incurably premature,” said the brief order. The Standard/Tegna broadcasters had argued that the HDO was a final decision and that the mandamus petition to compel the FCC to act on the applications was a last resort. The FCC and the union and public interest group intervenors must file a response to the mandamus request by April 11, and the broadcasters must reply by April 14, the order said. The Standard/Tegna broadcasters have said their deal will irretrievably break up May 22.

T-Mobile appealed to the 9th U.S. Circuit Court of Appeals after a district court refused to stop California from switching to a connections-based method for state USF contribution. The carrier notified the U.S. District Court for Northern California about the appeal Monday.

U.S. Magistrate Judge Laurel Beeler for Northern California late Friday denied the motion of T-Mobile and its subsidiaries for a preliminary injunction that sought to block the California Public Utilities Commission's change to a $1.11 monthly per-line fee from the previous revenue-based mechanism. The CPUC order took effect Saturday.

T-Mobile had argued the connections-based method was clearly inconsistent with the FCC’s revenue-based mechanism for federal USF. The district judge said the California method was different, but plaintiffs failed to show it was inconsistent and preempted.

New Jersey prorating rules are allowed under the federal Cable Act, the New Jersey Supreme Court ruled Monday. No justices opposed the opinion by Justice Douglas Fasciale to reinstate the state Board of Public Utilities' cease-and-desist order against Altice for failing to prorate canceled bills.

"The regulation does not set the ‘rate’ that companies can charge,” wrote Fasciale. “It simply protects cable users from paying for service they no longer want.” The court remanded to the appellate court to resolve Altice's argument that the board failed to follow proper procedures in its enforcement action.

The BPU and Division of Rate Counsel had appealed a 2021 state Appellate Division decision that the federal Cable Act preempts the state prorating rule. At a January oral argument, New Jersey Supreme Court justices challenged Altice on its claim that a state requirement to prorate cable bills is impermissible rate regulation.

Chief Justice Stuart Rabner and Justices Anne Patterson, Fabiana Pierre-Louis and Rachel Wainer Apter joined Fasciale’s opinion. Justice Lee Solomon and temporarily assigned Judge Jack Sabatino recused themselves from the case. Altice didn't immediately comment.

A federal magistrate judge late Friday denied the motion of T-Mobile and its subsidiaries for a preliminary injunction that would have blocked the California Public Utilities Commission's change to a $1.11 monthly per-line USF contribution fee from the previous revenue-based mechanism. The order came a short time before CPUC’s mechanism change took effect Saturday in the state.

T-Mobile and its subsidiaries haven’t shown that the CPUC “exceeded its intrastate role” by imposing the flat-rate surcharge or that it shifted the USF funding burden against them in favor of LECs, said the order (docket 3:23-cv-00483) signed by U.S. Magistrate Judge Lauren Beeler for Northern California in San Francisco. She denied the injunction, she said, because the T-Mobile subsidiaries failed to show a likelihood of success on the merits and because of the “serious questions going to the merits” of their claim that the CPUC per-line surcharge was preempted by federal law.

NAB filed an amicus brief with the U.S. Court of Appeals for the D.C. Circuit calling on the court to treat the Standard/Tegna hearing designation order as a final action and calling the order a threat to the broadcast industry. “This Court should treat this order according to its intent and effect -- a de facto final denial of the license application -- and hear the appeal,” NAB said in the brief filed late Thursday. The trade group also filed a motion seeking permission to file the amicus brief. The FCC Media Bureau’s action “on gossamer evidence” injects “untenable unpredictability into license transfer applications,” the trade group said. NAB has historically held back from weighing in on specific deals, but CEO Curtis LeGeyt vocally condemned the HDO earlier this month.“We urge the court to correct this egregious misstep by the FCC," said LeGeyt in a release Thursday. "Unappointed FCC staff have sent this proposed deal to regulatory purgatory, depriving the Commissioners the opportunity to participate in decisions that carry significant implications for broadcast stations and their viewers and listeners." “Public interest review is not a mechanism for regulating licensee business contracts and employment practices,” the filing said. The Media Bureau’s “significant departure” from FCC precedent “means in practice that no party contemplating an investment in broadcast stations can, with any certainty, predict how the FCC will process its license transfer,” NAB said. “The broadcast industry cannot tolerate this kind of unpredictability.”

NAB will take the FCC to court unless it delays the 2022 quadrennial review and concludes the 2018 QR, said an ex parte filing Wednesday and broadcast industry officials in interviews, “The Commission has no lawful basis for withholding the belated 2018 review, and that failure independently threatens the viability of the 2022 review,” said the filing in docket 22-459. Multiple broadcast attorneys told us the trade group is resolved to pursue the matter in court, and without FCC action NAB will petition the U.S. Court of Appeals for a writ of mandamus. The filing gives the agency until April 12 to act to toll the 2022 QR proceeding and conclude the 2018 iteration. It’s not likely the FCC will agree to the request, attorneys told us. The agency didn't immediately comment.

The broadcasters involved in the Standard/Tegna deal filed a notice of appeal and a petition for mandamus with the U.S. Court of Appeals for the D.C. Circuit challenging the FCC’s hearing designation order. The companies had said they would appeal to the courts if the commissioners didn’t vote on the deal by Monday. “The Hearing Order is a final denial warranting this Court’s review,” said the appeal notice, filed in docket 23-1083. “After nearly a year of slow-rolling the applications, the Media Bureau ordered a hearing on legally irrelevant topics with full awareness that it would spell the end for the applications.” As the broadcasters had cautioned the FCC, the appeal challenges the constitutionality of the FCC’s administrative law judge and argues the FCC’s decision was arbitrary, capricious and outside its jurisdiction. The writ of mandamus, which was filed separately in docket 23-1084, urges the court to compel the FCC to issue an order on the deal, but the broadcasters told the court the mandamus was filed “out of an abundance of caution” and appealing the HDO as a final order is “the proper vehicle. The broadcasters have said their deal will unravel if it isn’t consummated by May 22.

The 5th U.S. Circuit Court of Appeals denied Consumers' Research's challenge of the FCC's method for funding the Universal Service Fund under the nondelegation doctrine, in a ruling Friday. The FCC "has not violated the private nondelegation doctrine because it wholly subordinates" the Universal Service Administrative Co., the court said, adding that Congress "supplied the FCC with intelligible principles when it tasked the agency with overseeing" USF. “We’ll let the unanimous decision speak for itself," emailed an FCC spokesperson. Consumers' Research declined to comment.

U.S. District Judge Terry Doughty for Western Louisiana in Monroe, in a 77-page decision Monday, mostly denied the government’s motion to dismiss the claims of the Republican attorneys general of Louisiana and Missouri, plus a host of private plaintiffs, that the Biden administration colluded with Big Tech to suppress right-leaning content on social media.

Doughty denied the government’s motion to dismiss on grounds that the plaintiffs lacked Article III standing because all suffered an injury-in-fact. He also found that the plaintiffs’ claims aren’t barred by the doctrine of sovereign immunity. Because the complaint alleges state action, the plaintiffs “plausibly state a claim for violation of the First Amendment via government-induced censorship,” said Doughty. “Plaintiffs have plausibly alleged prior restraints and viewpoint discrimination, which are clear violations of the First Amendment.”

The court agrees with the government that injunctive relief against President Joe Biden “is not proper here,” said Doughty, granting the defendants motion to dismiss on that point. The plaintiffs already seek relief against several subordinate federal officials, who are “more properly subject” to the court’s jurisdiction, he said. “The case law suggests that where relief against other federal officials would redress the Plaintiffs’ alleged injuries, the claims against the President should not proceed and are not necessary.”

T-Mobile late Thursday took a hard line against the plaintiffs in the 16 class actions who sued the company over its Jan. 19 data breach disclosure and want the cases transferred for pre-trial consolidation under a single judge.

All the T-Mobile customers who sued are “contractually obligated to resolve their claims against T-Mobile through individual arbitration, not class action litigation,” said the carrier’s opposition at the Judicial Panel on Multidistrict Litigation, where the 16 class actions await a ruling. “T-Mobile will therefore move to compel arbitration of each named plaintiff’s claims,” it said: “If granted, those motions will eliminate class action litigation over the cyberattack.”

Transfer won’t “promote the just and efficient conduct of the action,” said T-Mobile. Its motions to compel arbitration “turn on individual, plaintiff-specific evidence showing that the plaintiff agreed to individual arbitration,” it said. “Transfer for coordinated or centralized pretrial proceedings will not eliminate those individualized inquiries.”

T-Mobile added that if the panel disagrees, it would favor transfer and consolidation in either the U.S. District Court in Kansas City, Missouri, or in Kansas City, Kansas, near the company's secondary U.S. headquarters in Overland Park, Kansas.

The U.S. District Court for the District of Columbia dismissed a False Claims Act action brought by lawyers Mark O’Connor and Sara Leibman, who allege that defendants fraudulently represented that Frequency Advantage was a “very small business” qualifying for “designated entity” status and a bidding discount in a 2015 spectrum auction. The case had been brought against UScellular and Frequency Advantage, along with other defendants, including Advantage Spectrum, King Street Wireless and Telephone and Data Systems. The court earlier dismissed the case but granted plaintiffs “leave to amend their allegations to allow them to attempt to proffer different allegations or transactions from those already in the public domain,” the court said: “The Amended Complaint fails to do so. The ‘core allegation’ Plaintiffs-Relators identify in their Amended Complaint is the same as in their original Complaint, which the court already held did not overcome the public disclosure bar. They proffer the same FCC filings and other public information from their original Complaint.”

The FCC's finding that Wide Voice violated its 2019 access arbitrage order via a business restructuring that let it impose tandem charges was "reasonable and lawful," the 9th U.S. Circuit Court of Appeals said Thursday in a docket 21-71375 decision, denying WV's petition for review. While WV argued the FCC order should be set aside because the agency decision wasn't supported by evidence and deviated from its own legal precedent, the three-judge 9th Circuit panel concluded the agency decision "was not arbitrary and capricious, nor unlawful under the Administrative Procedure Act." WV outside counsel didn't immediately comment.

A three judge panel of the U.S. Court of Appeals for the DC Circuit unanimously rejected Schwab Multimedia’s appeal of FCC decisions that led to the broadcaster losing its permit to build an AM station in Culver City, California, said an opinion Friday from Judge Justin Walker. “You can’t build a radio station without a place to put it,” wrote Walker. Schwab had appealed the agency’s denial of its fourth tolling request to extend construction deadlines for the unbuilt KWIF(AM) Culver City. After losing its original construction site Schwab had argued that its failure to construct had been caused by industry delays from the COVID-19 pandemic and California wildfires, and that it had secured a new site, though that site hadn’t yet been approved by the FCC. The agency said that site loss was the actual reason for the delays, and that site loss is not a valid reason for extending construction deadlines under FCC rules. “Because the agency’s decision was reasonable and reasonably explained, we affirm,” the opinion said.

AT&T asked the U.S. Court of Appeals for the D.C. Circuit to review the FCC's November order resolving a pole attachment complaint the carrier filed against Duke Energy. In its petition (case 23-1010), AT&T said the FCC's order denied it "the full relief it sought" by requiring it to "pay a substantially higher rate for use of Duke’s poles than the just, reasonable, and fully compensatory new telecom rate AT&T’s competitors pay for use of comparable space on the same utility poles." It asked the court to vacate the order and "provide such additional relief as may be just and proper." The companies are also seeking reconsideration of the order in the 4th U.S. Circuit Court of Appeals (see 2212290050).

Dish Network has joined the International Dark-Sky Association in asking the U.S. Court of Appeals for the D.C. Circuit to reject the FCC's partial approval of SpaceX's second-generation constellation. The D.C. Circuit clerk on Thursday ordered Dish's appeal to be consolidated with IDSA's (docket 23-1001). Dish said in its notice of appeal, docketed late Thursday, that the FCC "arbitrarily and capriciously [ignored] unrebutted expert studies submitted by DISH showing that SpaceX’s Gen2 system would significantly exceed the applicable power limits adopted by the FCC for the 12 GHz band, and thus would risk causing unacceptable interference with DISH’s Direct Broadcast Satellite ... service." It also said the FCC deprived interested parties of an opportunity to obtain and comment on data that was the subject of a submission SpaceX made to the agency regarding whether the second-gen system complies with power limits. That violates the Administrative Procedures Act, Dish said.