Howard Buskirk

McLaughlin Chiropractic Associates laid out why the U.S. Supreme Court should overturn the 9th U.S. Circuit Court of Appeals' decision that, under the Hobbs Act, courts must accept the FCC’s interpretation of the Telephone Consumer Protection Act. McLaughlin pointed to PDR Network v. Carlton & Harris Chiropractic, a 2019 SCOTUS case about FCC authority to implement the TCPA. The court handed down what was seen as a middle-of-the-road decision in that case (see 1906200055). “There, the Fourth Circuit held that it was bound by the FCC’s interpretation of the TCPA, just like the Ninth Circuit did,” said a brief SCOTUS posted Monday. “Although a majority of this Court didn’t reach the question, four Justices concluded that the Hobbs Act ‘does not bar’ a party ‘from arguing that the agency’s interpretation of the statute is wrong,’” the brief said: “Like PDR Network, this case involves private TCPA claims for money damages and the appeal turns on whether an FCC order bound the court.” Nothing in the Hobbs Act’s text “supports the Ninth Circuit’s reading,” McLaughlin said: “Nor is there any other basis to conclude that Congress designed the Hobbs Act to strip district courts of their authority to interpret a federal statute. … No one doubts that district courts may not hear pre-enforcement petitions seeking those specific forms of relief.” But the Hobbs Act “says nothing about other kinds of actions, like a private action for money damages, that are properly filed in federal district court under ordinary federal-question jurisdiction.” SCOTUS is to hear oral argument Jan. 21 in McLaughlin Chiropractic Associates v. McKesson. The case is viewed as having larger implications for the FCC beyond its legal interpretation of the TCPA (see 2410170015).

Commenters disagreed on whether the FCC should require additional disclosures relative to AI calls, in reply comments to an NPRM that commissioners approved 5-0 in August. Consumer and public interest groups urged a smart approach, targeting calls that will most likely confuse consumers. Industry commenters said no new rules are needed now.

CTA is optimistic it can work with the new Trump administration on tech issues, two of the group's top policy officials told us. The outlook on spectrum policy and other issues isn’t completely clear, they added.

The Biden administration is making progress on each of the five bands it's studying as part of the national spectrum strategy (see 2311130048), Shiva Goel, NTIA senior adviser-spectrum policy, said during a Center for Strategic and International Studies webinar late Thursday. Other speakers said the government must make available more high-powered licensed spectrum to ensure the nation doesn’t fall behind China and other competitors.

Three former Republican FCC commissioners agreed Thursday that the Trump administration will likely focus on making more spectrum available for 5G and 6G, but conceded that the bands targeted by wireless carriers won’t be easy to address. Harold Furchtgott-Roth, director of the Hudson Institute's Center for the Economics of the Internet, joined Cooley’s Robert McDowell and Mike O’Rielly, now a consultant, during a Hudson forum.

Members of the Public Safety Spectrum Alliance cast the FCC’s recent order allowing FirstNet to use unassigned parts of the 4.9 GHz band as a win for public safety agencies. Industry experts said the order is unlikely to be reversed in the Donald Trump administration since it was approved with the support of FCC Republicans Brendan Carr and Nathan Simington. Opponents have threatened litigation (see 2410220027).

CTIA and the U.S. Chamber of Commerce supported Verizon’s challenge of the FCC's April fines for data violations, filing amicus briefs in the 2nd U.S. Circuit Court of Appeals. On a 3-2 vote in April, commissioners imposed fines against the three major wireless carriers for allegedly not safeguarding data on customers' real-time locations years earlier (see 2404290044). Commissioners Brendan Carr and Nathan Simington dissented. The two groups earlier filed in support of AT&T’s challenge of its fine in the 5th Circuit (see 2408060035). “For years, wireless service providers enabled beneficial, legitimate uses of customer location data with their customers’ consent,” CTIA said in a brief filed this week in docket 24-1733. These uses included the provision of emergency assistance and fraud detection, CTIA said. “For years, the FCC was aware of these services, never once suggesting an issue,” the group said: “But after a third party not before this Court misused a location service, the Commission changed its mind and, in the Order under review, declared Verizon’s location-based services unlawful -- levying a $46.9-million forfeiture to boot. The Commission’s newfound interpretation is patently unlawful and flouts both the text of the statute and decades of the agency’s own precedent.” The FCC “abused its investigative and enforcement authority to violate the company’s Seventh Amendment right to a jury,” the Chamber told the court. The agency then “announced and applied novel legal interpretations of the Communications Act to calculate and impose staggering forfeitures for activities that were not at the time of conduct a violation of any agency rule or law.”

The broadband equity, access and deployment (BEAD) program will likely survive despite speculation the next Congress will seek to claw back money from the $42.5 billion initiative (see 2410210043), state broadband officials said Wednesday during a Broadband Breakfast webinar. Some also speculated that SpaceX CEO Elon Musk’s role in President-elect Donald Trump's administration will mean a shift in BEAD away from a focus on fiber over other ways of reaching consumers (see 2411080033).

The move to open radio access networks is accelerating, and may prove inevitable, experts said Tuesday during an Informatech 5G transport and networking strategies webinar. But carriers have options, speakers said. Meanwhile, Ericsson posted a progress report on moving to ORAN.

The Wireless ISP Association told the FCC many of its members use CBRS spectrum for reaching subscribers, and it opposes higher power levels for priority access license holders as a threat to general authorized access use of the band. Comments were due last week on an August NPRM in docket 17-258 (see 2411070032). Increasing maximum power levels “would substantially increase mutual interference between GAA users and even between GAA and PAL users on different channels,” WISPA said. “WISPA members should not be required to replace existing, relatively new equipment and purchase and deploy expensive high-powered base stations such as those used by mobile carriers in order to maintain their service areas.” Lockheed Martin said the FCC must coordinate major changes with DOD. “The current power levels represent a material, established feature upon which CBRS is premised,” Lockheed said: “Despite the essential role of pre-coordinated and established power levels, the Commission appears to have proposed these changes independently, and it is unclear what inter-agency coordination has or will occur and whether, even, there is support for such action by federal stakeholders.” Researchers at the University of Notre Dame noted that the use of CBRS is accelerating, even in small markets such as South Bend, Indiana, where the university is based. The researchers called for more reporting of interference metrics as measured on the ground by users. “When spectrum is being shared among multiple different users deploying networks in different verticals, the more information that can be shared, the better the performance for all,” they said. The Notre Dame researchers opposed adding a third category of devices that transmit at higher power levels than currently authorized, saying it would “exacerbate the secondary coexistence problem.” But Ericsson said the FCC should at least examine use of higher power levels. “Higher power levels for both [devices] and user equipment improve the efficiency of coverage to serve rural and underserved areas and reduce the cost of deployment,” Ericsson said: “Power levels can constrain certain use cases, especially wide-area commercial and enterprise networks. Enterprises like mining, large-scale agriculture, and media and entertainment companies need to support large outdoor coverage areas, and higher power levels can have a dramatic impact on enabling efficient deployments.” Increasing transmit power levels “will improve coverage, especially in rural areas, increase network efficiency, and reduce equipment and network design and deployment costs” and “can be achieved without causing harmful interference to incumbents or other spectrum users,” Federated Wireless said. Federated noted transmit levels are much lower than in the adjacent 3.45 GHz and C-band. “This discrepancy creates a significant coverage imbalance between CBRS and these adjacent bands, which undermines CBRS’s competitive capability and restricts its potential for expanded service, particularly in rural and underserved areas.”