The Detroit Public Library owes about $376,000 to IT contractor Ahead in the Cloud and hasn't responded to requests for payment, alleged the contractor's breach of contract complaint Wednesday (docket 2:24-cv-11424) in U.S. District Court for Eastern Michigan in Detroit. The parties agreed in March 2022 that Ahead, an E-rate-approved contractor, would provide and install security, internet and computer equipment to the library. The agreement called for funding to be provided by the DPL funds, along with receipt and reimbursement of federal funds from Universal Service Administrative Co. (USAC), including E-rate program funding, alleged the complaint. The parties agreed DPL was to pay Ahead and then seek “in whole or in part” reimbursement from USAC for costs incurred, it said. Ahead provided all of the internet communications, security and devices DPL requested, and DPL was to pay the plaintiff $468,948.41 for all work performed, the complaint said. On April 21, 2023, Ahead billed DPL $122,370.97, portions of which were reimbursable from USAC to DPL, said the complaint. Ahead submitted another bill for $298,286.06 in October, also partially reimbursable from USAC to DPL, it said. In February, Ahead received a payment of $44,742.91 from the defendant, leaving $375,914.12 due, the complaint said. Five follow-up letters and emails to DPL regarding payment have “gone unanswered,” the complaint said. The plaintiff seeks the amount due, plus legal costs, interest, and other fees and expenses allowed by law. The library didn't comment.

Radio Communication Corp. “fundamentally misreads the statutory scheme” and is “simply mistaken” in its challenges to the FCC’s implementation of the 2023 Low Power Protection Act (LPPA) (see 2404230058), said the agency's respondent brief Wednesday (docket 24-1004) in the U.S. Court of Appeals for the D.C. Circuit. “It is well within Congress’s power to regulate local television broadcasting,” said the brief. RCC's arguments that the FCC’s rules governing which low-power TV stations can upgrade to Class A status violate the First Amendment or discourage cable carriage of LPTV stations are “entirely beside the point,” because RCC is located in too large a market and so “ineligible for Class A status under the plain text” of the LPPA, the FCC said. The agency “correctly interpreted the statutory requirement that an eligible station ‘operate in a Designated Market Area with not more than 95,000 television households’ to mean that an eligible station must be located within a Designated Market Area that has no more than 95,000 television households,” the filing said. RCC is in a DMA with more than 95,000 TV households, so “that conclusion resolves this case,” the FCC said. “RCC’s various policy objections, its strained reading of the Communications Act, and its tenuous constitutional theories cannot change its ineligibility.”

The Texas Association of Broadcasters filed a petition for review Thursday (docket 24-60226) in the 5th U.S. Circuit Court of Appeals challenging the FCC’s gathering of equal employment opportunity workforce diversity data. TAB's filing alleges the agency, through its Feb. 22 EEO order, “seeks to deputize private activists to pressure” broadcasters to “achieve the FCC’s long-held goal of imposing race and gender quotas on broadcast stations.” The order violates broadcasters' constitutional rights and is arbitrary and capricious, the petition said. The TAB appeal joins another filed in the 5th Circuit earlier this month by the National Religious Broadcasters and the American Family Association (see 2405060057). In addition, groups of religious broadcasters, including the Catholic Radio Association, filed several applications for review (see 2405010070).

AT&T says the FCC should vacate a recent forfeiture order against the company on grounds that it’s arbitrary, capricious and an abuse of discretion within the meaning of the Administrative Procedure Act, said its petition for review Thursday (docket 24-60223) in the 5th U.S. Circuit Court of Appeals. In the April 29 order, the FCC imposed a $57.3 million penalty for AT&T’s violations of Section 222 of the Communications Act and commission regulations governing treatment of customer proprietary network information (CPNI). It found that AT&T failed to use reasonable measures for discovering and protecting against attempts to gain unauthorized access to customer location information. However, AT&T said as a “threshold matter,” the location data isn’t CPNI within the meaning of Section 222. Accordingly, the company's petition for review said the FCC lacked statutory authority to issue the order. “At a minimum,” by first announcing its “novel and expansive interpretation” of Section 222 in its enforcement proceeding and “retroactively punishing” the carrier for conduct preceding that announcement, the FCC “failed to provide the fair notice that AT&T was due,” it said. Even assuming otherwise, the agency’s finding that AT&T acted unreasonably in discovering and protecting against unauthorized access to customers’ location data is arbitrary and capricious, it added. The imposition of a $57.3 million penalty based on the existence of 84 distinct location-based-services providers, despite zero breaches by those providers, “defies law and logic,” it said. The FCC “has long lauded the valuable and sometimes life-saving benefits of location-based services, the growth of which AT&T has facilitated by implementing industry-leading data security safeguards,” the petition said. Yet the order “takes the nonsensical position that AT&T should have abruptly cut off access to customer location data in response to a news report of a single provider’s misuse,” of which the FCC had been aware for a year, “and despite the absence of any evidence that AT&T customers’ information was subject to unlawful use,” it said. The agency’s enforcement regime also “runs afoul” of the Constitution, the petition argued. Rather than grant a hearing to an alleged violator, it may elect to issue a notice of apparent liability, pass judgment on its own proposed liability finding and penalty, and then demand payment as a prerequisite to an appeal, the petition said: “That regime violates due process, Article III, the Seventh Amendment, and the nondelegation doctrine.”

The FCC’s digital discrimination broadband order “is illegal on at least three grounds,” the Pacific Legal Foundation and the Washington Legal Foundation said in an 8th U.S. Circuit Appeals Court amicus brief Tuesday (docket 24-1179). The brief supports the 20 industry petitioners that seek to vacate the order as unlawful (see 2404230032). When Congress grants lawmaking authority to a federal agency, it must lay down by legislative act an intelligible principle to which the agency can conform, according to the brief. Section 60506 of the Infrastructure Investment and Jobs Act directs the FCC to adopt rules that facilitate equal access to broadband, including by preventing digital discrimination of access based on income level, race, ethnicity, color, religion or national origin, it said. The industry petitioners “persuasively explain” that Section 60506's language doesn’t permit the FCC to implement disparate impact liability, it said. But if it did, then that language violates the nondelegation doctrine by failing to provide an intelligible principle governing such liability, it said. “Virtually any action that a regulated entity can take will have a disparate impact along one or more dimensions of income level, race, ethnicity, color, or religion,” said the brief. That’s especially true because of the inclusion of income level, “which means that any decision by a covered entity lowering or raising prices will have a disparate impact based on income and thus come within the FCC’s enforcement authority,” it said. The authority to promulgate disparate impact rules “is a major question to which Congress is required to speak clearly,” it said. Because Congress didn’t speak “clearly to this particular question” in the statute, the FCC’s order is “invalid,” it said. The order also requires covered entities to “treat people differently based on race, in violation of the constitutional guarantee of equal protection,” it said.

The FCC's ongoing, contested L-band regulatory proceeding is the proper place for addressing Ligado's concerns regarding its use of the spectrum, especially as the FCC could provide Ligado with adequate relief, DOJ told the U.S. Court of Federal Claims Monday. In a docket in support of the defendant U.S. government's motion to dismiss, Justice said FCC licenses aren't property for purposes of the takings clause, and Ligado hasn't pleaded an authorized taking of its license anyway. DOJ said Ligado's "grab-bag of takings theories" is rife with deficiencies. Ligado is alleging its L-band rights, worth tens of billions, were rendered valueless by U.S. taking of Ligado's property (see 2310130003). The U.S. is seeking dismissal (see 2401260003). DOJ on Monday said that Ligado is ignoring that the FCC's 2020 Ligado order faces eight reconsideration petitions that are pending. It said Ligado is asking the federal court to usurp FCC decision-making and the judicial review process "by depriving the FCC of the opportunity to adjudicate any takings claims and by awarding Ligado billions in compensation for the alleged taking of supposed property -- the modified license -- that the FCC or court of appeals may later abrogate."

Indian Peak Properties seeks to vacate the FCC’s March 7 order denying its petitions for declaratory ruling, said its petition for review Monday (docket 24-1108) in U.S. Appeals Court for the D.C. Circuit. Indian Peak's petitions had sought a federal preemption under the commission’s over-the-air reception devices (OTARDs) rule of a decision by Rancho Palos Verdes, California, to revoke, under local ordinances, the company’s conditional use permit for the deployment of rooftop antennas on a local property. The FCC’s order denying Indian Peaks that relief was premised on a new “human presence” rule for OTARDs, the petition said. That means FCC staff found that Indian Peak failed to plead facts sufficient to establish a regular human presence at the property where the antennas were deployed. But such a “substantive rule” under the Administrative Procedure Act requires a notice-and-comment rulemaking to be legal and effective, said Indian Peak's petition. But “no notice was given, and the public was afforded no opportunity to comment on the new rule,” it said. Instead, the order announced this rule when it denied Indian Peak’s application for review before the commission, it said. The order also upholds FCC staff’s refusal to declare a proceeding, and hold in abeyance state court litigation, it said, The order thus “upholds staff’s violations of FCC rules of procedure,” it said. With its appeal, Indian Peak seeks reversal of these “arbitrary and capricious agency actions that are contrary to law,” and remand to the FCC “for treatment not inconsistent” with the D.C. Circuit’s opinion, it said. On remand and with the FCC’s grant of Indian Peak’s petitions, the local zoning ordinance would be preempted, and the company would be able to replace the disputed antennas on the rooftop of the property, it said.

The National Religious Broadcasters and the American Family Association filed a joint petition for review asking that the 5th U.S. Circuit Court of Appeals overturn the FCC’s February Equal Employment Opportunity order. The EEO order requires that broadcasters file workforce diversity information with the agency using Form 395-B. The Media Bureau issued a public notice Monday announcing that the EEO order would take effect June 3 but said the compliance date hasn't yet been set because the information collection is still under the OMB Paperwork Reduction Act. The bureau will issue a subsequent PN announcing the compliance date, it said. The form was "suspended for 20 years for good reason and revived on highly questionable grounds,” NRB President Troy Miller said in a release late Friday. Requiring the information to be public and attributable to individual broadcasters, the FCC is “opening the door to third-party weaponization of the public file to target specific broadcast stations,” NRB said. The EEO order “violates the equal protection component of the Fifth Amendment and the Free Speech Clause of the First Amendment,” said the brief petition. Bringing back Form 395-B exceeds the FCC’s authority and is “an abuse of discretion,” the order said. America First Legal Foundation, a litigation nonprofit led by Stephen Miller, adviser of former President Donald Trump, is representing NRB and AFA in the case. It often represents conservative causes and entities. The petition for review comes on top of two appeals of the order filed at the FCC by religious broadcasters and groups objecting to the planned updating of Form 395-B to recognize nonbinary gender (see 2405010070).

The FCC’s April 24 opposition to Essential Network Technologies and MetComm.Net's petition challenging the authority of the FCC and the Universal Service Administrative Co. to withhold reimbursement of discounts for IT and broadband services that the companies provided to schools confirms that the petition should be granted, the petitioners’ reply said. It was filed Wednesday (docket 24-1027) at the 8th U.S. Circuit Court of Appeals. Discounts on IT and broadband services come under Section 254 of the Communications Act (see 2404250028). The FCC calls the mandamus relief that the petitioners seek to force the reimbursements a drastic remedy that should be invoked only in extraordinary circumstances. In cases such as this, involving claims of unreasonable agency delay, mandamus is warranted only when delays are egregious, the agency said. But under “the first mandamus factor,” for a remedy in this case to be adequate, “it must enable the numerous schools in this case to complete their IT projects before the next school year,” said the petitioners’ reply. If the FCC doesn’t render a decision and provide funding before the summer, “many schools will be unable to move forward with vital IT projects and hundreds of students will be deprived next school year of the IT infrastructure necessary for a modern education,” it said. Compensatory relief after years of litigation, as the FCC suggested, doesn’t provide an adequate remedy that would prevent this harm to the public, “which after next year would become irreversible in the absence of immediate mandamus relief,” it said. The agency contends that in light of evidence showing that the petitioners may have had an improper relationship with the schools they were servicing, USAC investigated that possible misconduct, but expects those probes will be finished by the end of May. But that expectation “provides little solace when USAC lacks any authority to address the legal issues in this case and there is no time limit for an FCC decision,” said the petitioners’ reply. The agency’s opposition doesn’t indicate when the FCC will render a decision or whether the schools will receive funds before next school year, it said. Under the second mandamus factor, there’s a clear and indisputable right under Section 254 to the particular relief sought, it said. The Fifth Amendment also establishes a clear and indisputable right to due process, which required a “timely deprivation hearing” either before or after Essential and MetComm were deprived of their “statutory entitlement to reimbursement,” it said. The FCC has a “clear duty” to report its deprivation decision in writing, it said.

NTCA takes special interest in the impact of the FCC’s Nov. 20 digital discrimination order on its small-business members, the association’s amicus brief argued in the 8th U.S. Circuit Appeals Court (docket 24-1179) said Monday. The brief supports the 20 industry petitioners that want the order vacated as unlawful (see 2404230032). The “potential adverse effects” of the order implementing Section 60506 of the Infrastructure Investment and Jobs Act “risk particular impact to small businesses that generally lack access to resources and economies of scale that can enable larger businesses to absorb substantial market or regulatory changes,” NTCA’s brief said. But those impacts “are neither envisioned nor authorized by the statute, whose language contemplates a far more limited scope of implementation,” it said. Compliance with certain of the standards presented in the FCC’s order “is effectively impossible since the processes by which those measures can be achieved are wholly inconsistent with the normal and ordinary practices within which NTCA members conduct their business,” it added. The standards contemplate the ability of small private businesses “to have access to the confidential business considerations of other businesses,” it said: “This result, too, is neither contemplated nor accommodated in the statutory language.” The 8th Circuit should hold the order as "unlawful" and set it aside, said NTCA.