Opening briefs were due Monday in the Supreme Court case Arlington, Texas, et al. v. FCC, which will take a hard look at the Chevron doctrine and federal agencies’ ability to determine their jurisdiction. The court took up the question Oct. 5, raising questions about how the FCC exerts its authority (CD Oct 12 p1). Petitioners include the city of Arlington and San Antonio, Texas, Los Angeles, San Diego and the Texas Coalition for Utilities Issues. The petitioners have attracted significant support among state advocates. The National Association of Regulatory Utility Commissioners adopted a resolution Nov. 13 in support of the petitioners (CD Nov 14 p5) and NARUC is now one among many state advocates speaking up.
Major Questions Doctrine
BALTIMORE -- State regulators are confronting an increasingly tortured relationship with the FCC, creating a task force to address it Monday at the NARUC meeting. It consists of seven commissioners and is already official and active. Meanwhile, two NARUC resolutions directly address the fractured FCC relationship, as was expected (CD Nov 2 p12), and NARUC adopted both resolutions as policy Tuesday after they advanced through the telecom subcommittee and committee. One urges FCC referral to the Federal-State Joint Board on Universal Service as well as to the Federal-State Joint Board on Jurisdictional Separations on major decisions, and another addresses a pending Supreme Court case on the Chevron doctrine, looking at the risk of federal overreach of authority.
The U.S. Supreme Court’s decision to hear a case challenging a 2009 FCC wireless zoning shot clock order may have much bigger implications for the commission and other regulatory agencies, lawyers and analysts said this week. The court granted cert Friday (CD Oct 10 p15) in Arlington, Texas, v. FCC, in a case that could mean high court review of the broader Chevron doctrine. The doctrine requires federal courts to defer to an agency’s interpretation of a statute, as long as that interpretation is deemed “reasonable.” The doctrine dates to a 1984 case, Chevron U.S.A. v. Natural Resources Defense Council.
The Supreme Court’s Jones decision has left the law in disarray concerning warrantless government access to information from cell-site tracking, email, cloud computing and Web surfing, legal experts said Wednesday. “The law is really up in the air and uncertain at this point,” said Hanni Fakhoury, an Electronic Frontier Foundation lawyer. Susan Axelrod, senior appellate counsel at the Manhattan District Attorney’s office, said that “for a prosecutor, it’s very frustrating” trying to deal with the questions opened by the case.
Google’s YouTube could still find itself guilty of copyright infringement, under a ruling Thursday by the 2nd U.S. Circuit Court of Appeals, which sent back to a trial court Viacom’s case against the video-sharing website. The U.S. District Court in New York had absolved YouTube of liability, granting summary judgment under the Digital Millennium Copyright Act (DMCA) safe harbors (CD June 24/10 p6). The 2nd Circuit found fault with U.S. District Judge Louis Stanton’s requirement that YouTube have “item-specific” knowledge of infringement to be disqualified from the safe harbors, and said a “reasonable jury” could find that YouTube had “actual knowledge or awareness of specific infringement.”
The U.S. Supreme Court ruled unanimously Monday that police must obtain a search warrant before using GPS technology to track criminal suspects. The ruling was the first by the court that tackled the constitutionality of GPS tracking. Privacy advocates were quick to hail the court’s decision in U.S. v Jones (http://xrl.us/bmpkkt) as a major win, though they acknowledged many difficult electronic privacy questions remain unsettled.
SAN FRANCISCO -- The legal system must recognize information law as a cohesive field crossing several traditional doctrines and the world’s many jurisdictions, to lay a good foundation for a long era of new rules supporting innovation, said Kent Walker, Google’s general counsel. “If you get that foundation wrong, the house is going to go off in a funky direction,” he said at the Corporate Counsel West Coast Conference. And in-house lawyers should stop being largely naysayers and become agents of change with regulators and those at other companies in addition to within their own, he said.
DALLAS -- Sen. Kay Bailey Hutchison, R-Texas, is “confident” that her joint spectrum bill with Commerce Committee Chairman Jay Rockefeller, D-W.Va., will get through both houses of Congress and be signed this year, she said in response to our question after a speech at the TIA convention. Hutchison said the bill has “changed enormously” since Rockefeller initially introduced it, making it more appealing to both parties.
Standards bodies like 3GPP and carriers may have different interpretations of 4G, but they all consider things like spectrum efficiency and latency to be critical elements of the technology, experts said in interviews. Meanwhile, public safety has its own approach on 4G, public safety experts told us.
The National Association of Manufacturers, the U.S. Chamber of Commerce and TechAmerica called on the FCC not to rush to reclassify broadband as a Title II service in the wake of the Comcast decision. Each said it planned to file reply comments on the net neutrality proceeding to the FCC shortly before the deadline late Monday. Several groups put out statements to get their positions heard ahead of a likely deluge of filings. The FCC said it received more than 100,000 comments in its first comment round (CD Jan 19 p1).