Industry groups might seek rehearing of the 2nd U.S. Circuit Court of Appeals decision to uphold New York state’s Affordable Broadband Act (case 21-1975). The New York State Telecommunications Association, CTIA, USTelecom and other plaintiffs filed a Monday motion seeking until May 24 “to file a petition for rehearing and / or rehearing en banc.” Such a petition is usually due in 14 days (May 10), but “good cause” exists to grant a two-week extension, the industry groups said. For one thing, the FCC ruled on net neutrality the day before the court’s decision came out and the final text isn’t yet available, they said. The 2nd Circuit ruled Friday that federal law doesn’t preempt the New York law under Communications Act Title I classification of broadband (see 2404260051). But on Thursday, the FCC voted 3-2 to reclassify broadband as Title II (see 2404250004).

The 9th U.S. Circuit Appeals Court is considering for August oral argument in San Francisco the appeal of three YouTubers who allege that Google violated Oregon’s Automatic Renewal Law (ARL), said a text-only docket notice Thursday (docket 23-35465). The YouTubers contend that the district court erred June 15 when it granted YouTube’s motion to dismiss their second amended complaint (see 2311210030). They contend that YouTube was required under the Oregon statute to disclose, in a “clear and conspicuous manner,” five “specifically enumerated automatic renewal offer terms.” The plaintiff-appellants are three Oregon residents who enrolled in YouTube subscription services and allege that YouTube didn’t comply with any of the ARL’s requirements.

The 9th U.S. Court of Appeals agreed with a lower court that denied preliminary injunction against the California Public Utilities Commission shifting to a per line surcharge for the state Universal Service Fund. T-Mobile’s Assurance Wireless had argued that the state must align with the FCC’s revenue-based method for federal USF. But on March 31 last year, the U.S. District Court for Northern California decided not to block the CPUC’s April 1 change. The 9th Circuit heard arguments on an appeal in October (see 2310170042). "The carriers have failed to show a likelihood of success on their claim that the access line rule is 'inconsistent with' the FCC rule,” Judge Ryan Nelson wrote in Friday’s opinion, which Judges Jacqueline Nguyen and Eugene Siler joined (case 23-15490). The court referred to the Communications Act's Section 254(f), which prohibits USF rules that are "inconsistent" with FCC rules. Inconsistent doesn’t mean different, Nelson wrote. "The access line rule differs from the FCC’s rule funding interstate universal service programs. But the carriers have not shown that it burdens those programs, and they have thus failed to show that they are likely to succeed on their claim that it is inconsistent with those rules." Also, the court rejected T-Mobile’s claim that the surcharge rule is preempted because it's inequitable and discriminatory. "The carriers argue that they are harmed more than local exchange carriers,” but the CPUC rule treats all telecom technologies “the same and, if anything, is more equitable than the prior rule, under which most of the surcharges came only from ever-dwindling landline services,” Nelson said. The CPUC’s "course correction" is "a fair response to a real problem,” he added. “In a world of ever-evolving telecommunications technologies, competitive neutrality must allow some play in the joints. To hold otherwise would hamstring California’s ability to satisfy its statutory mandate of providing universal service." T-Mobile also argued the change was discriminatory because the CPUC rule treats providers who get federal affordable connectivity program (ACP) support differently from those in the state LifeLine program. But the court found differences between the programs and noted that companies in ACP have the option of joining LifeLine. The decision "affirms that the CPUC's surcharge rule is consistent with federal law," said a commission spokesperson. "The CPUC will continue to utilize the surcharge to ensure consumers have safe, reliable, affordable, and universal access to telecommunications services." T-Mobile didn’t immediately comment.

Google’s Feb. 20 answering brief in the 9th U.S. Circuit Court of Appeals in defense of allegations that YouTube violates Oregon’s Automatic Renewal Law (ARL) and Free Offer Law (FOL) (see 2402220037) “brings nothing new to the table,” and is “grounded in contradictions,” said the plaintiff-appellants’ reply brief Thursday (docket 23-35465). Victor Walkingeagle, Nathan Briggs and Donald Molina's appeal contends that the district court erred June 13 when it granted YouTube’s motion to dismiss their second amended complaint for violations of the two Oregon statutes (see 2311210030). Where the appellants allege that YouTube’s disclosures, acknowledgment emails and cancellation mechanisms fail under Oregon’s ARL and FOL, YouTube says “they did not,” said the reply brief. The parties “have arrived at starkly different conclusions” as to conspicuousness, textual meaning and contractual intent, it said. “But these are disputes of fact,” it said. “At bottom, this dispute is mired in disputed factual questions concerning reasonable consumers’ impressions,” it said. In dismissing the plaintiffs’ claims, the U.S. District Court of Oregon failed to accept the allegations as true or construe them in the plaintiffs’ favor, “despite its obligation to do so,” the reply brief said. The district court also “failed to read the pertinent statutes in light of the plain textual meaning and basic grammar rules,” it said. And it failed to give the consumer protection statutes that the plaintiffs allege YouTube violated in this case “the liberal interpretation required under Oregon law,” it said. The district court also “improperly resolved factual disputes that should have been left for the jury,” it said. The 9th Circuit should reverse the lower court’s dismissal of the plaintiffs’ complaint in its entirety, it said.

Georgia Public Service Commission elections may go ahead this November, the 11th Circuit Court of Appeals said in a Wednesday order. The appeals court stayed a permanent injunction by a lower court that had stopped the 2022 Georgia PSC election. Previously, on Nov. 24, the 11th Circuit reversed the Northern District of Georgia's injunction that stopped Georgia’s secretary of state from administering PSC elections using the statewide, at-large method and from certifying any commission elected using that method. Meanwhile, the U.S. Supreme Court is considering whether to take up an appeal of the 11th Circuit decision (see 2404150025). The district court had blocked the statewide, at-large method because it said it constituted unlawful vote dilution under Section 2 of the Voting Rights Act.

Frontier Communications must spend $20 million over four years to upgrade internet speeds and infrastructure in North Carolina under a settlement with Attorney General Josh Stein (D), the state DOJ said Tuesday. The carrier also will pay $300,000 in restitution for North Carolina customers affected by slower speeds. North Carolina and other states joined the FTC suing Frontier in 2021 over slow speeds. The federal court in that case dismissed the state’s claims against Frontier while allowing the FTC’s case to proceed (see 2110040066). However, North Carolina continued to negotiate with Frontier to reach a settlement, the AG office said. “We’ve been hearing concerns from Frontier customers for years now, and I’m hopeful that these investments will lead to better service,” said Stein. Frontier didn’t comment.

The U.S. Supreme Court gave Georgia until May 28 to respond to a Black voting group’s cert petition in a case about Georgia Public Service Commission elections (docket 23-1060). The court granted in part a request by the state, which Thursday sought an extension until June 25. The voting group’s March 25 petition asked the court to reverse an 11th U.S. Circuit Court of Appeals decision finding that elections must remain statewide for the Georgia PSC’s five members (see 2312080010). The 11th Circuit last November reversed the Northern District of Georgia's decision blocking that method on grounds that the at-large elections constituted unlawful vote dilution under Section 2 of the Voting Rights Act.

U.S. District Judge Donald Molloy for Montana in Missoula scheduled a bench trial for Dec. 9 in the consolidated complaints brought by TikTok and individual TikTok users to permanently block SB-419, Montana’s statewide TikTok ban, on constitutional grounds, said the judge's signed order Thursday (docket 9:23-cv-00061). The parties anticipate that the trial will last three days, said the order. Sept. 16 is the deadline for completing discovery after Molloy signed an order Wednesday permitting the parties to conduct limited discovery (see 2404110029), it said. The judge’s Nov. 30 opinion and order granted the plaintiffs a preliminary injunction blocking SB-419 from taking effect Jan. 1, pending a final determination on the merits of the plaintiffs' claims that the statute violates the First Amendment and the Constitution’s supremacy and commerce clauses (see 2312010003). The injunction remains under appeal in the 9th U.S. Circuit Appeals Court (see 2401030007).

U.S. District Judge Donald Molloy for Montana in Missoula signed an order Wednesday (docket 9:23-cv-00056) permitting Missouri Attorney General Austin Knudsen (R) and the plaintiffs in the consolidated cases seeking to defeat SB-419, Montana’s statewide TikTok ban, to conduct limited discovery (see 2402060044). A trial schedule will be set by separate order, it said. The plaintiffs contend that the case “raises predominantly legal questions,” and argue that although further discovery isn’t necessary, if more discovery is warranted, it must be limited and targeted, said the order. The plaintiffs specifically limit their discovery to inquiries about the evidence lawmakers considered in passing SB-419 and whether the state’s consumer protection interest is “pretextual,” it said. The state “has established that some additional discovery is warranted, so limited discovery will be allowed,” said the order. But the judge disallowed the state’s request for discovery related to past agreements between ByteDance and TikTok and ByteDance and its other subsidiaries because those “are outside the scope of this litigation,” said the order. He also disallowed discovery into TikTok’s historical data-related processes and procedures, it said. “Nothing in SB-419 aims to regulate other ByteDance subsidiaries or historical user data collected by TikTok,” said the order: “Historical data cannot justify a forward-looking restraint on speech.” The judge’s Nov. 30 opinion and order granted the plaintiffs a preliminary injunction blocking SB-419 from taking effect Jan. 1, pending a final determination on the merits of the plaintiffs' claims that the statute violates the First Amendment and the Constitution’s supremacy and commerce clauses (see 2312010003). The injunction remains under appeal in the 9th U.S. Circuit Appeals Court (see 2401030007).

The California Supreme Court will decide by May 20 whether to grant or deny review of a state appeals court’s Feb. 9 decision that the California Privacy Protection Agency (CPPA) may start enforcing California Privacy Rights Act (CPRA) regulations, the high court said Wednesday (docket S283856). The California Chamber of Commerce in February filed a petition to review California’s 3rd District Court of Appeal decision that vacated the June decision of the California Superior Court in Sacramento. The superior court had granted a CalChamber petition and stayed any CPPA rules for 12 months after they become final (see 2402210031).