FCC critics face an uphill battle to convince a federal court to rehear and overturn a ruling upholding the FCC's net neutrality and broadband reclassification order, some knowledgeable sources told us Thursday. Various parties who originally challenged the order are expected to file petitions Friday for rehearing the 2-1 decision at the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC, No. 15-1063), they said. Even commission critics say the odds are against the D.C. Circuit granting rehearing, but some suggested the appellate court proceeding might improve the prospects for Supreme Court review, including on the question of Chevron deference to the agency.
Major Questions Doctrine
Observers see the 2016 Republican Party platform generally aligning with traditional Republican telecom positions, despite inclusion of a line saying ISPs shouldn't pick winners or losers. Delegates largely preserved the platform rough draft circulating among Republican National Convention officials more than a week ago (see 1607110057). The 66-page final document evolved markedly in two instances, based on the version adopted and released for the first time Monday at the GOP convention in Cleveland. Presumptive GOP presidential nominee Donald Trump hasn't released a telecom agenda, unlike presumptive Democratic nominee Hillary Clinton.
It appears all but certain industry will appeal the U.S. Court of Appeals for the D.C. Circuit’s decision Tuesday upholding the FCC 2015 net neutrality rules (see 1606140023). Less certain is whether the Supreme Court will take the case. A complicating factor is that four of the remaining eight justices would have to agree to hear the case, and, with the death of Justice Antonin Scalia, that will be more difficult until his slot is filled, court watchers said in interviews Tuesday.
It's uncertain what factors Oracle will base its appeal of a San Francisco federal jury's ruling Thursday in favor of Google in the second Oracle v. Google trial, but Oracle has several options, IP lawyers said in interviews. The U.S. District Court jury said Google's use of the coding and names contained in Oracle's Java application programming interface (API) technology in its Android mobile operating system qualifies as a transformative use under the fair use doctrine. Oracle vowed to appeal the verdict (see 1605260067). The tech sector hailed the federal jury's verdict as an important win for fair use.
A jury in U.S. District Court in San Francisco found in favor of Google Thursday in the second trial related to Oracle’s software copyright infringement lawsuit against the company. The jury said Google’s use of the coding and names contained in Oracle’s Java application programming interface (API) technology in its Android mobile operating system qualifies under the fair use doctrine. Google faced up to $9.3 billion in Oracle-proposed damages. The U.S. tech industry was closely watching the second Oracle v. Google trial, given its major implications for the scope of fair use and the financial implications for the U.S. software market (see 1605090048). The jury’s verdict is "a win for the Android ecosystem, for the Java programming community, and for software developers who rely on open and free programming languages to build innovative consumer products,” Google said in a statement. Oracle plans to appeal the jury’s verdict because the company believes “Google developed Android by illegally copying core Java technology to rush into the mobile device market,” Oracle General Counsel Dorian Daley said in a statement. “Oracle brought this lawsuit to put a stop to Google’s illegal behavior.” The U.S. Court of Appeals for the Federal Circuit remanded the fair use question in Oracle v. Google to the San Francisco district court in 2014, also saying Oracle’s APIs are copyrightable (see 1405120040). The Supreme Court declined last year to grant Google’s petition for a writ of certiorari on the Federal Circuit’s API copyright ruling (see 1506290062).
With the European Commission reportedly preparing to nix UK Three's buying O2, questions are being raised whether the carriers will pre-emptively withdraw their proposal, and whether cross-border tie-ins are the way forward. It would be yet another deal that European authorities effectively quashed amid heightened scrutiny on how telecom mergers and acquisitions hurt customers by raising prices (see 1508030002). The Competition Directorate has signaled that mobile consolidation in the domestic markets isn't welcome, telecom consultant Innocenzo Genna blogged Wednesday.
Several Supreme Court justices appeared to agree that no single factor for determining copyright fee-shifting cases as set in Fogerty v. Fantasy should outweigh other factors, during oral argument Monday on its review of Kirtsaeng v. John Wiley & Sons. Two supporters of Kirtsaeng who attended the argument told us they are unsure how that position will translate into a court ruling. Thai citizen Supap Kirtsaeng sought a review of the 2nd U.S. Circuit Court of Appeals' 2015 ruling that Kirtsaeng wasn’t entitled to receive attorney’s fees from textbook company Wiley after winning a 2013 Supreme Court case that extended the scope of the first-sale doctrine (see 1601190071).
Net neutrality became part of discussions led by Senate Homeland Security Committee Chairman Ron Johnson, R-Wis., during his Wednesday hearing on what he deemed regulatory burdens. Senators of both parties at the hearing supported tweaking the Administrative Procedure Act, which governs procedures of federal agencies.
The ascendency of Donald Trump as the favorite to be the Republican nominee for president is raising the same kinds of questions in communications circles as it has on many other fronts. Few major communications players have rallied to his support, just as he has tallied few endorsements among Republican officials nationwide. Industry officials express uneasiness with Trump. They said it's unclear who he would pick for his transition teams on the FCC and communications issues, or who he would tap to lead the FTC or FCC, as NTIA administrator, or for the other key positions overseeing communications policy.
The first days under House Speaker Paul Ryan, R-Wis., should encourage telecom industry stakeholders, Washington veterans told us. The 45-year-old Ryan, a 2012 vice presidential candidate and most recently Ways and Means Committee chairman, kept a low profile on telecom issues since election to the House in 1998. But his focus on tax and regulation has often led to backing certain telecom measures over the years, with focuses ranging from E-rate to USF to the fairness doctrine. He assumed the speakership after the retirement of Rep. John Boehner, R-Ohio, at October’s end, following weeks of GOP leadership uncertainty, and a crucial hire in Ryan’s leadership office showcases strong ties to industry.