Court Rejects Overstated First Amendment Challenge to Anti-Circumvention Rights

 On August 2, the U.S. Court of Appeals for the D.C. Circuit released a decision upholding the constitutionality of the anti-circumvention rights provisions in Section 1201 of the Digital Millennium Copyright Act (DMCA). At issue before the court in Green v. U.S. Department of Justice was a First Amendment facial challenge to Section 1201. The court's decision is an important vindication of the law that protects copyright owners from unlawful access to their intellectual property.

In the digital age economy, owners of valuable copyrighted media, including movies, TV shows, sound recordings, books, and images must be able to control who has access to their content. Section 1201 furthers that basic purpose, as I described in my February 2022 Perspectives from FSF Scholars, "D.C. Circuit Should Affirm the Constitutionality of Anti-Circumvention Rights":

Similar to how the law of trespass protects property owners against unauthorized access to their land, Section 1201 protects copyright owners against those who intentionally subvert TPMs in order to access their copyrighted content. Sections 1201(a) and 1201(b) prohibit the circumvention as well as the trafficking of services and devices that circumvent TPMs for controlling access to copyrighted content. Both provisions are directed toward technologies that are designed primarily to circumvent TPMs, have only limited commercially significant purposes other than circumventing TMPs, or are marketed or used in concert with a person with knowledge of intended use for circumventing TPMs.

During a prior appeal to the D.C. Circuit in Green, the Appellants raised both as-applied and facial First Amendment challenges to Section 1201. In a blog post titled "D.C. Circuit Affirms the Constitutionality of Anti-Circumvention Rights," I wrote about the court’s December 2022 decision that rejected as-applied challenges raised against Section 1201. In that instance, the court did not reach the merits of the facial challenge and remanded it to the trial court. Subsequently, the District of Columbia upheld the constitutionality of Section 1201. An appeal on the matter of the facial challenge was brought again before the D.C. Circuit, providing the occasion for the decision in Green that was issued on August 2.

 

In essence, the Appellants argued that Section 1201 was overbroad because it censors speech that is fair use of copyrighted works, and fair use is necessarily protected by the First Amendment. That is a thoughtful and clever argument, but as the D.C. Circuit wrote: "we disagree that the First Amendment necessarily shields all fair uses of copyrighted work from regulation." The court explained:  

The First Amendment protects a right to read, but it does not grant unimpeded access to every reading material a reader might wish for. Similarly, the First Amendment does not guarantee potential fair users unfettered or privileged access to copyrighted works they seek to use in their own expression. To hold otherwise would defy the First Amendment's solicitude of speakers' control over their own speech. See Harper & Row, 471 U.S. at 559 (noting that copyright serves the First Amendment value of the "right not to speak"). 

 

If every work that the public might wish to access "could be pirated away" via circumvention, soon nothing worth reading would be published electronically. Id. Plaintiffs' premise that fair users are entitled to make unauthorized use of copyrighted works assumes away the very entitlements copyright law validly protects. Consumers' access to copyrighted work routinely requires consent from the copyright owner- typically obtained by paying for access subject to certain limitations on use. 

As the court recognized, there might conceivably be instances in which Section 1201 or the denial of an exemption from its strictures could give rise to successful as-applied First Amendment challenges. But overwhelmingly that is not likely the effect of the law. The statute is not content-based and it does not favor or disfavor any particular viewpoints. Its purpose is to protect the valuable copyrighted property from unauthorized access. The D.C. Circuit's decision in Green v. U.S. Department of Justice, including its handling of the fair use issue, is thoughtful and reasonable. In upholding the constitutionality of anti-circumvention rights, the court gets it right once again. 

D.C. Circuit Affirms APA Reviewability of Copyright Exemptions Rules

On June 7, the U.S. Court of Appeals for the District of Columbia issued its decision in Medical Imaging & Technology Alliance v. Library of Congress. The case presents the question of whether copyright rules adopted under the Digital Millennium Copyright Act (DMCA) are reviewable under the Administrative Procedure Act (APA). In a 2-1 decision that brought to the fore the unusual structure and operation of the U.S. Copyright Office, the court answered "Yes."

The court's opinion was authored by Judge Neomi Rao. At issue in the case was a legal challenge to an exemption from the DMCA's anti-circumvention provisions that were granted by the Librarian of Congress following a triennial DMCA rulemaking. The exemption allowed for independent service operators to bypass technological protective measures (TPMs) on medical devices for purposes of diagnosis, modification, or repair of those devices. The Library of Congress disputed that its rulemaking was subject to APA review.

According to the D.C. Circuit:

In the Copyright Act [of 1976], Congress provided that copyright regulations are reviewable under the APA. The Act expanded the Register's rulemaking authority and provided that, with one exception not relevant here, "all actions taken by the Register of Copyrights under [Title 17] are subject to the provisions of the Administrative Procedure Act." 17 U.S.C. § 701(e). We have previously reviewed actions of the Register based on this provision. See, e.g., Atari Games Corp. v. Oman, 888 F.2d 878, 879 & n.1 (D.C. Cir. 1989); Universal City Studios LLLP v. Peters, 402 F.3d 1238, 1242 (D.C. Cir. 2005). Although section 701(e) refers to actions of the Register, the Register is subordinate to the Librarian and 'shall act under the Librarian's ... direction and supervision." 17 U.S.C. § 701(a). More specifically, "[a]ll regulations established by the Register under [Title 17] are subject to the approval of the Librarian of Congress." Id. § 702…

Congress conferred authority for the triennial rules at issue here in the DMCA, which added the following provision to Title 17: "[T]he Librarian of Congress, upon the recommendation of the Register of Copyrights, ... shall make the determination in a rulemaking proceeding" whether to waive the anti-circumvention provision for certain classes of copyrighted works. Id. § 1201(a)(1)(C). In other words, the DMCA authorized a new type of copyright regulation that would be formulated by the Register and approved by the Librarian. 

 

Reading the two statutes as a comprehensive statutory scheme, DMCA rules are also subject to the APA under 17 U.S.C. § 701(e). The Copyright Act plainly applies the APA to "all actions" of the Register under Title 17, including rulemaking subject to the approval of the Librarian. See id. §§ 701(e), 702…

The court concluded that because Congress applied the APA's waiver of sovereign immunity to actions of the register and Librarian in adopting copyright regulations it is immaterial as to whether the Library is an "agency" under the APA. As the court recognizes, the Copyright Office is peculiarly subordinated to the Librarian of Congress and deemed an "agency" of Congress. The court acknowledged that the Librarian's decisions about the Library's internal workings are not reviewable under the APA, and the court's ruling in the case was limited to the issue of copyright regulation. But the essentially executive character of the copyright regulation adopted by the Librarian on the recommendation of the Register of Copyrights was noted in a commendable section on judicial review of administrative agency action for conformity with the law: 

Reading section 701(e) to provide for judicial review of triennial DMCA rules aligns with fundamental principles regarding the protection of individual rights against unlawful government action. To begin with, the Copyright Act and the DMCA give the Register and Librarian significant authority to "promulgate copyright regulations" and "apply the statute to affected parties.” See Intercollegiate [Broadcast System, Inc. v. Copyright Royalty Board, 684 F.3d 1332,1342 (D.C. Cir. 2012)]. As we have recognized, and no party disputes, these powers are "generally associated in modern times with executive agencies.” Id. When enacting regulations and enforcing the law, "the Library is undoubtedly a component of the Executive Branch." Id. (cleaned up). Moreover, the triennial rules directly affect valuable property rights, such as a copyright holder’s ability to limit access to a digital creation and to prevent intellectual property theft. The triennial rules also provide exemptions from civil and criminal liability that would otherwise attach to individuals who circumvent technological protective measures. 17 U.S.C. §§ 1201(a)(1)(B), 1203–04. The exemptions are not left solely to the Librarian's discretion, but instead must be determined according to specific statutory criteria. Id. § 1201(a)(1)(C). There is no indication in the DMCA that Congress, having allocated this substantial regulatory power to the Librarian and Register and identified the legal criteria they must apply, would leave such power unchecked by judicial review. 

In sum, the court held that DMCA triennial rulemakings are subject to APA review. Judge Rao deserves credit for writing a well-reasoned and perceptive judicial opinion. 

Free State Foundation President Randolph May and I explored the structural history of the U.S. Copyright Office and its relationship with the Library of Congress in our book Modernizing Copyright Law for the Digital Age: Constitutional Foundations for Reform (Carolina Academic Press, 2020).

D.C. Circuit Affirms the Constitutionality of Anti-Circumvention Rights

On December 6, a panel of the U.S. Court of Appeals for the D.C. Circuit unanimously upheld the constitutionality of the anti-circumvention provisions contained in Section 1201 of the Digital Millennium Copyright Act of 1998. In Green v. U.S. Department of Justice, the D.C. Circuit determined that Section 1201 is a content-neutral law that poses no more than incidental restrictions on speech content – and it does not target specific viewpoints. The decision is an important vindication of copyright owners' right to exercise control over who can access their valuable creative content. 

Online services that offer licensed access to copyrighted movies, TV shows, and music recordings for viewing or listening typically use "technological protection measures" (TPMs) such as encryption and scrambling to ensure that only paying subscribers can access such content. Section 1201 supports copyright owners' right to control access to their creative works by prohibiting the use of, or trafficking in, technologies that are intended to defeat or bypass TPMs. 

The two plaintiffs in Green v. U.S. Department of Justice want to publish works or create and sell devices intended to bypass – or at least provide examples or instructions regarding how to bypass – security measures for accessing copyrighted works. The plaintiffs in Green raised pre-enforcement First Amendment challenges to Section 1201, claiming that the law is a facially overbroad restriction on protected speech and that application of the law would unconstitutionally restrict their rights to engage in their projects relating to the bypassing of TPMs. 

In a February 2022 Perspectives from FSF Scholars entitled "D.C. Circuit Should Affirm the Constitutionality of Anti-Circumvention Rights," I discussed the Green case and wrote that Section 1201 is "a speech-neutral law intended to aid copyright owners in preventing bad actors from misappropriating the value of their property" and that "[t]he D.C. Circuit ought to affirm Section 1201's constitutionality with flying colors." On December 6, the court rightly did so. 

 

The D.C. Circuit determined that it lacked jurisdiction to hear the plaintiffs' facial First Amendment challenges because the lower court had only dismissed a request for a preliminary injunction against the enforcement of Section 1201 and not made a final decision on the merits. And the court affirmed the lower court's dismissal of plaintiff Matthew D. Green's request for a preliminary injunction because Mr. Green lacked standing to bring his facial challenge to the law. At oral argument in the case, the government conceded that Mr. Green's proposed course of conduct would not run afoul of DMCA, and thus the court concluded that Mr. Green faced no credible threat of prosecution.

Regarding the merits of plaintiffs' as-applied challenges, the D.C. Circuit rightly concluded that the statute does not target speech based on its communicative content. The court stated that "[t]he DMCA's anticircumvention and antitrafficking provisions target not the expressive content of computer code, but rather the act of circumvention and the provision of circumvention-enabling tools." As a content-neutral law, the court therefore subjected Section 1201 to intermediate scrutiny, and it determined that the law easily passes the test. 

The D.C. Circuit concluded that Section 1201 furthers an important governmental interest in combatting massive piracy in the digital environment and in creating a legal platform for launching the global digital marketplace for copyrighted works. Additionally, the court wrote that "[t]he government's evidence makes clear that 'without adequate protection against infringing serial copying,' content owners 'would not disseminate their valuable copyrighted [digital] content.'" 

These conclusions by the D.C. Circuit in Green regarding the essential role of anti-circumvention rights in safeguarding and promoting the creation and marketing of creative works are correct. Free State Foundation President Randolph May and I discuss the same basic points in our October 2020 Perspectives from FSF Scholars, "Congress Should Preserve Anti-Circumvention Rights: The Online Market for Movies and Music Depends on DMCA Section 1201.")

In sum, the D.C. Circuit was absolutely right to reject the flimsy First Amendment claims raised in Green. Constitutionally-protected free speech is an indispensable part of American freedom. But those bedrock rights were nowhere jeopardized by Section 1201. And the case was not a close call. 

 

P.S. Another recent judicial decision interpreting Section 1201's anti-circumvention provisions is analyzed in my September 2020 Perspectives from FSF Scholars, "Court Ruling Reinforces Copyright Owners' Anti-Circumvention Rights."

FCC Rule Removing Barriers to Fixed Wireless Broadband Deployments Upheld

On Friday, in Children's Health Defense v. FCC, the D.C. Circuit upheld the FCC's 2021 OTARD Order that expanded the scope of its rule preempting restrictions on broadband Internet rooftop antennas to include all "hub and relay" antennas. Free from such unreasonable deployment barriers, fixed wireless broadband providers are better able to compete against other distribution technologies and serve the needs of consumers.

For background, the Telecommunications Act of 1996 directed the Commission to adopt rules that promote intermodal competition in the video market by preempting state, local, and covenant-based restrictions on the installation of rooftop antennas. Congress mandated this rulemaking because states, localities, multitenant building owners, and home owners' associations often banned rooftop antennas needed for "wireless cable" and satellite TV services, or at minimum saddled them with unreasonably burdensome compliance costs and other obligations.




In response, the Commission adopted its "over-the-air reception device" (OTARD) rule, which preempts regulations that "unreasonably delay or prevent installation" or "unreasonably increase the cost" of rooftop antennas smaller than 1 meter in diameter and no higher than 12 feet above the roofline. In subsequent years, the Commission has updated the OTARD rule multiple times, including expanding the scope of the rule to cover rooftop antennas used for fixed wireless broadband service.

The 2021 OTARD Order is the latest of these updates, revising the OTARD rule to conform with current technical realities of fixed wireless broadband offerings, many of which involve "mesh" networks that rely upon a greater number of smaller antennas. Pursuant to the Order, the OTARD rule now preempts regulation of all "hub" rooftop antennas used for fixed wireless broadband service that fall within the rule's dimension limits. Prior to this Order, the OTARD rule only protected hub antennas used to serve the specific location to which they were attached.

Consumers stand to benefit from the 2021 OTARD Order because it enables fixed wireless providers to deploy the equipment needed to improve and expand network performance.

The D.C. Circuit upheld the 2021 OTARD Order against multiple attacks from petitioners. First, the court rejected petitioners' claim that the FCC lacked authority to expand the OTARD rule, holding that the text of Section 303 of the Communications Act and the Commission's interpretation of this section provided authority and a reasoned basis for its Order. According to the Court, Section 303 grants the Commission authority to regulate radio "stations," which the Commission has interpreted to mean individual antennas using radiofrequency (RF) spectrum. The Order is a lawful use of this authority.

Next, the court rejected petitioners' Administrative Procedures Act challenge that the Commission failed to consider health effects from RF exposure, concluding that this issue was outside the scope of the Order and best addressed in the Commission's RF proceedings. The court reasoned that federal agencies can designate specific proceedings to address specific issues, as the Commission had done in a 2019 rulemaking on RF exposure.

The court also rejected petitioners claim that the Order facially violates the Americans with Disabilities Act (ADA) and Fair Housing Act (FHA), determining that petitioners failed to show that the Order is unlawful in every application and because their arguments again relied on the supposed health effects of RF exposure. A facial challenge to an agency order requires that the order be invalid in every instance, and since the petitioners' claims here involved specific individuals protected by the ADA and FHA, they could not meet this burden. Further, even if petitioners could meet that burden, the claims involved assertions about the health effects of RF exposure that the Commission addressed in a separate proceeding.

Lastly, the court rejected petitioners' claim that the Commission unlawfully preempted state and local law, holding that Section 303 empowers it to do so.

However, the court noted in dicta that the Commission is "treading on thin ice" by preempting state and local statutes mandating community notice prior to the construction of commercial grade antennas, pointing out that such preemption may implicate the First Amendment. But because petitioners in this case relied on a facial challenge to the 2021 OTARD Order, the court did not rule on this narrower preemption issue.

Free State Foundation scholars are pleased to see the D.C. Circuit uphold a sound policy that fosters intermodal broadband competition by removing unreasonable barriers to the deployment of fixed wireless broadband equipment. Director of Policy Studies Seth Cooper wrote FSF Blog posts supporting the 2021 OTARD Order and proceeding. We hope to see more infrastructure reforms that remove broadband deployment barriers.

D.C. Circuit Decision Clears the Way for a Wave of Wi-Fi 6E Devices

As Free State Foundation Director of Policies Studies and Senior Fellow Seth Cooper explained in his post to this blog yesterday, the FCC's just-released Eleventh Measuring Broadband America Fixed Broadband Report confirms that high-speed Internet access speeds continue to rise dramatically.

As they do, the Wi-Fi networks that consumers rely upon to connect their devices to broadband service likewise must evolve, lest they serve as a bottleneck. Wi-Fi 6, the latest iteration of the ubiquitous wireless networking standard, can deliver that crucial complementary capacity – but requires large swaths of relatively unencumbered spectrum to do so.

In 2020, the FCC delivered, opening up the 6 GHz band to flexible unlicensed use. On the heels of a D.C. Circuit decision largely affirming the Commission's bold action, both consumer electronics manufacturers and Internet service providers (ISPs) are making available "Wi-Fi 6E" devices able to make full use of the increased speeds made possible by 5G, cable 10G, fiber, and other next-generation broadband distribution technologies.

As I explained in "Wi-Fi 6E Can Modernize Unlicensed Wireless," a February 2020 Perspectives from FSF Scholars, the "Wi-Fi 6E" label distinguishes Wi-Fi 6 devices able to operate in the 6 GHz band from those relegated to the relatively congested 2.4 GHz and 5 GHz bands.

Why is that distinction so important? The contiguous 1200 MHz of spectrum the FCC made available in the 6 GHz band makes possible the wider (160 MHz) channels required to maximize the full potential of the Wi-Fi 6 technical specification.

On December 28, 2021, the D.C. Circuit largely rejected challenges to the FCC's 6 GHz Order. For additional information, please see Free State Foundation Legal Fellow Andrew Magloughlin's post to the FSF Blog summarizing the court's decision in AT&T Services, Inc. v. FCC.

In a press release, Free State Foundation President Randolph May applauded the D.C. Circuit's recognition of "the considerable degree of deference to be accorded the FCC regarding technical spectrum management matters" and, in particular, its appreciation of the technical implications of the agency's "harmful interference" standard.

In that decision's wake, Wi-Fi 6E devices are proliferating.

The 2022 Consumer Electronics Show is underway, and companies including Netgear and TP-Link have utilized that high-profile platform to unveil new Wi-Fi 6E devices. Netgear's Nighthawk WiFi 6E Router provides speeds up to 10.8 gigabits per second (Gbps) and the low latency (lag) that hard-core gamers, among others, crave.

Meanwhile, TP-Link's Archer AXE200 Omni AXE11000 Tri-Band Wi-Fi 6E Router utilizes mechanically rotating robotic antennas to deliver speeds up to 11Gbps:

Source: TP-Link's website.

In addition, ISPs are beginning to roll out Wi-Fi 6E-compatible routers directly to their subscribers. On January 3, 2022, Comcast announced that the new version of its xFi Advanced Gateway supports Wi-Fi 6E – and thus is the "first to support the speeds of the future – symmetrical Gigabit speeds" that the cable 10G platform promises to deliver.

In December 2021, Verizon also revealed a new router able to operate in the 6 GHz band. Notably, while the device is compatible with both its FiOS fiber-based offering and Verizon 5G Home Internet service, the company is providing it to subscribers of the latter first.

Delivering average download speeds that average 300 Mbps and peak at 940 Mbps, Verizon's robust fixed wireless broadband offering leaves no doubt that fixed 5G is a viable alternative to traditional home Internet service options. And Verizon's decision to prioritize the deployment of its Wi-Fi 6E router to its fixed 5G customers underscores the extent to which these two wireless distribution technologies complement one another.

6 GHz Order on Unlicensed Spectrum Upheld by D.C. Circuit

Today, in AT&T Services, Inc. v. FCC, the D.C. Circuit largely upheld the FCC's order that opened the 6 GHz band for use by unlicensed devices. The 6 GHz Order (2020) cleared 1200 MHz of spectrum for unlicensed use, which quadrupled the total amount of spectrum available for unlicensed devices, most notably Wi-Fi routers and Internet of Things (IoT) devices that use Wi-Fi.

The D.C. Circuit's decision greenlights the next generation of unlicensed devices, dubbed "Wi-Fi 6E." Consumers likely experience faster speeds and lower network congestion with Wi-Fi 6E, which makes use of the 6 GHz band's higher capacity than 2.4 GHz and 5 GHz bands that previously were allocated for unlicensed use. Consumers also are likely to be able to connect more devices to home Wi-Fi routers due to the increased capacity. Free State Foundation Senior Fellow Andrew Long discussed the benefits of and need for Wi-Fi 6E prior to release of the 6 GHz Order.

Licensees operating in the 6 GHz band challenged the 6 GHz Order under the Communications Act and Administrative Procedures Act (APA), arguing that the order would cause harmful interference with their licensed operations despite the order's mitigating measures. The court dismissed all but one of these challenges because the FCC adequately explained its reasoning, the Commission met its obligations under the APA, or the challenges relied on a "zero interference" standard that the agency never adopted. However, the court did remand one aspect of the 6 GHz Order to the Commission, based on its conclusion that the agency failed to address arguments made by the National Association of Broadcasters regarding interference with mobile operators. Because the court remanded the 6 GHz Order in response to this challenge, and did not vacate it, the order remains in effect and the Commission will have opportunity to address the issue on remand.

Throughout the opinion, the court remarked that the FCC's decisionmaking for preventing signal interference in the 6 GHz Order "requires a high level of technical expertise meriting deference to the Commission’s informed discretion." And the court also remarked that the FCC's interference mitigations aim to make the risk of harmful interference "insignificant," not "zero." Court challenges to FCC spectrum allocations do not prevail solely by showing potential interference, as long as the Commission adequately explains why it believes the risk of interference is low—a technical judgment that the court will not second-guess.

FCC's "Unified Jurisdiction" over Commercial Spectrum Supports its 5.9 GHz Order

In January 2022, the D.C. Circuit will hear arguments in a case challenging the FCC's 2020 decision to repurpose spectrum in the 5.9 GHz band for flexible unlicensed wireless use, including Wi-Fi. The court ought to uphold the 5.9 GHz Band Order. Despite strong opposition to the order by the U.S. Department of Transportation (DoT) and by private litigants, the Commission's decision to repurpose 45 megahertz for unlicensed Wi-Fi was based solidly on the agency's delegated authority over commercial spectrum allocations. It's also good policy. The FCC's order will help realize the full economic and social benefits of next-generation Wi-Fi 6 technology. 

In Intelligent Transportation Society of America v. FCC, one of the questions the D.C. Circuit will address is whether the Commission's 2020 decision failed to comply Section 5206(f) of the 1998 Transportation Equity Act for the 21st Century (TEA). According to a court brief that was filed by private litigants on November 19, the Commission didn't consult sufficiently with the DoT regarding spectrum needs for the operation of intelligent transportation systems in the 5.9 GHz band. However, TEA Section 5206(f) was directed toward an FCC rulemaking that was to be completed before January 1, 2000. And the Commission did that. Nothing in the TEA alters the Commission's jurisdiction over commercial spectrum or its authority to issue the 5.9 GHz Order. 

In U.S. v. Southwest Cable Company (1968), the Supreme Court described Congress's establishment of the FCC "to serve as the single Government agency with unified jurisdiction and regulatory power over all forms of electrical communications, whether by telephone, telegraph, cable, or radio." The Commission's power to "prescribe the nature of the service to be rendered by each class of licensed stations," "assign bands of frequencies to the various classes of stations," and make rules and regulations necessary to carry out such purposes is contained in Sections 303(b), -(c), and –(g) of the Communications Act. Also, Section 303(r) authorizes the Commission to "generally encourage the larger and more effective use of radio in the public interest." 

The FCC exercised this considerable authority over spectrum when it reallocated the lower 45 megahertz of the 5.850-5.925 GHz band for unlicensed use and reassigned the upper 30 megahertz of the band for vehicle communications. Public policy reasons for supporting that reallocation were offered by Free State Foundation President Randolph May and Senior Fellow Andrew Long in public comments filed in the 5.9 GHz band proceeding in March 2020. 

 

Both before and after the Commission approved its 5.9 GHz Band Order, the DoT publicly opposed the reallocation of spectrum for unlicensed Wi-Fi use. DoT claimed future Wi-Fi use in the lower part of the band causing potential out-of-band interference with transportation-related communications. But the FCC's order included measures to prevent such potential interference. The Commission has recognized expertise in spectrum engineering matters and in adjudicating disputes over alleged signal interference claims.

 

Regrettably, the DoT's attempts to stall or undo the Commission's implementation of commercial spectrum policy fits a disturbing pattern. Over the last few years, executive branch agencies – such as the Department of Commerce, the Department of Defense, and the Federal Aviation Administration (which is housed within the DoT) – have tried to undermine the FCC's decisions regarding commercial spectrum allocations intended to advance 5G and Wi-Fi 6 networks. And although the DoT never denied the Commission's authority over commercial spectrum reallocation decisions, private litigants have continued the fight over the 5.9 GHz band.

A decision by the D.C. Circuit to uphold the 5.9 GHz Order would constitute a small but helpful step toward vindicating the FCC's "unified jurisdiction and regulatory power" over commercial spectrum from interference by other federal agencies. 

Court Upholds FCC Efforts to Combat New Forms of Access Arbitrage

On July 7, the U.S. Court of Appeals for the D.C. Circuit upheld the FCC's 2019 Eliminate Access Arbitrage Order to combat gaming of the access charge system by competitive carriers that route calls to rural areas and encourage toll-free conference call centers operate in those areas. The order is intended to counteract unintended incentives for access stimulation schemes caused by peculiarities of the interstate access. The court observed: 

As a result of these incentives, some sparsely populated rural areas receive a disproportionate and overwhelming number of calls. The Commission credited AT&T's observation, for instance, that twice as many calling minutes were routed in a month to Redfield, South Dakota (population 2,300) and one end office as were routed to Verizon's facilities in New York City (population 8,500,000) and 90 end offices. Similarly, Sprint explained that Iowa, with 1% of the U.S. population, accounts for 48% of Sprint’s access fee payments. In addition to higher fees, the Commission notes that access stimulation may result in overloaded networks, call blocking, and dropped calls. 

In Great Lakes Communication Corp. v. FCC, a unanimous panel of the D.C. Circuit rejected Administrative Procedure Act-related challenges to the 2019 Order. The court concluded, the order was within the scope of the Commission's authority, it was reasonable, and it was a logical outgrowth of the notice of rulemaking. 

Judge Silberman's Straight Talk on New York Times v. Sullivan and One-Sided Media

On April 8, Free State Foundation President Randolph May posted a blog bout Justice Clarence Thomas's concurring statement in Biden v. Knight First Amendment Institute at Columbia University. Justice Thomas's concurring statement is both intriguing and provocative. For another intriguing and provocative judicial opinion, look no further than Senior Judge Laurance Silberman's dissent in Tah v. Global Witness Publishing, Inc. 

 

The D.C. Circuit's decision in Tah was released on March 19. The court affirmed a dismissal of a defamation case for failing to plausibly allege actual malice. Senior Judge Silberman's partial dissent gets really interesting in Part III, in which he calls into question the legal standard for proving defamation of public figures that was created by the Supreme Court in New York Times v. Sullivan (1969): 

I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. See McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari). The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 380–88 (1974) (White, J., dissenting). As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone.  

The foregoing paragraph is only the warm-up, as Senior Judge Silberman has much more to say about the Supreme Court making up new legal standards and leveraging its institutional legitimacy to resist any subsequent careful re-evaluation of its precedents. 

 

Senior Judge Silberman's dissent gets more interesting still when he identifies the effects of New York Times v. Sullivan in increasing the power of one-sided professional mass media organizations. Here is his first paragraph dealing with those effects: 

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon. Cf. New York Times, 376 U.S. at 305 (Goldberg, J., concurring) (reasoning that the press will publish the responses of public officials to reports or accusations). But seeSuzanne Garment, The Culture of Mistrust in American Politics 74–75, 81–82 (1992) (noting that the press more often manufactures scandals involving political conservatives). The increased power of the press is so dangerous today because we are very close to one-party control of these institutions. Our court was once concerned about the institutional consolidation of the press leading to a "bland and homogenous" marketplace of ideas. See Hale v. FCC, 425 F.2d 556, 562 (D.C. Cir. 1970) (Tamm, J., concurring). It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat. 

No blog summary can do justice to Senior Judge Silberman's dissent in Tah. Part III of his dissent deserves a full reading – and some pondering. 

Professor Lyons Analyzes Court Decision's Impact on 5G Deployment

Professor Daniel Lyons, a member of the Free State Foundation's Board of Academic Advisers, has written a new Perspectives from FSF Scholars paper analyzing an important court decision impacting 5G deployment. In "D.C. Circuit Decision Represents Setback to Next-Generation Network Deployment Efforts," Professor Lions reviews what United Keetoowah Band of Cherokee Indians in Oklahoma v. FCC(2019) means for 5G wireless infrastructure deployment and he also offers his insights on the D.C. Circuit's reasoning. 

As FSF scholars have long maintained, antennas and other small cell infrastructure pose little to no discernable impact, particularly compared to macro towers and base stations. Installation of small cell equipment deserves a more streamlined treatment by federal, state, and local governments.

Environmental and historical preservation reviews of small cell infrastructure has previously been the subject of prior legislation in Congress, including the SPEED Act. However, such legislation never passed. Following the D.C. Circuit's decision in United Keetoowah Band, the 116th Congress should seriously consider similar legislation aimed to accelerate 5G deployment. 

Neomi Rao Nominated to the U.S. Court of Appeals for the D.C. Circuit

Earlier this week, President Donald Trump nominated Neomi Rao, Administrator at the Office of Information and Regulatory Affairs (OIRA), to replace Judge Brett Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit. We were very pleased that Neomi Rao gave a keynote speech at the Free State Foundation’s tenth annual telecommunications policy conference on March 27, 2018 at the National Press Club. The video of her keynote speech begins around the 2:41:00 mark.

D.C. Circuit Panel Set for Open Internet Case

The U.S. Court of Appeals for the D.C. Circuit announced its three-judge panel to review the important case regarding the FCC’s Open Internet order. The FCC’s reclassification of broadband as a telecommunication service will be a focus of the case. The panel, which includes Judge David Tatel, Judge Sri Srinivasan, and Judge Stephen Williams, is scheduled to hear arguments on the order’s legality on December 4, 2015. 

FSF Seminar Panelists Weigh How Next FCC Chairman Should Respond to Verizon v. FCC

On September 9, oral arguments were held in the legal challenge to the FCC's network neutrality regulations. How the D.C. Circuit might rule in Verizon v. FCC has been a hot topic for discussion in legal circles. 

The public policy question of what the next FCC Chairman should do in response to the D.C. Circuit's future legal ruling was raised at FSF's June 2013 "If I Were the FCC Chairman..." lunch seminar. The seminar panel featured Gail MacKinnon, Executive VP and Chief Government Relations Officer for Time Warner Cable; Craig Silliman, Sr. VP for Public Policy & Government Affairs at Verizon Communications, and Gigi B. Sohn, President & CEO of Public Knowledge. FSF President Randolph May moderated the seminar's discussion and posed that question to the panelists. 

What follows is an excerpt from the edited transcript from the seminar containing the panelist's responses:

MAY
Look at both sides of this scenario, if the FCC wins or if the FCC loses Verizon v. FCC.  Even assume that it's going up to the Supreme Court.  We're going to go right down the line.  Just explain succinctly what you think the Commission should do in that event and why you think it should do it.  That involves both assessing where we are now, what the effect of the rules has been since they've been in place, the potential harm.  Let's really sharpen that, because, ultimately, it's going to be decided one way or the other.  And you're going to have to know what to do as the FCC chair.

MacKINNON
The question for the new FCC chair is, if Verizon prevails, what does he do?  He can either say, "Look, we've tried under the jurisdiction we thought," or "It's up to Congress now to pass legislation to give us clear authority."  The thing that worries us about the Title II proceeding just hanging out there is it does create an overhang.  That's why we'd like to see it closed.  We think if the FCC goes down the path to Title II, it would be pretty destructive for us.  Again, that's why Title II is such an issue for us…[I]f people are worried about having a cop on the beat look at this, whether it's anti-consumer or anticompetitive, there is the FTC.  It has authority to look at these things.  I'd also point out that BITAG gets together and talks about industry best practices.  There are a lot of other options out there.  If the new FCC chair were to say, "Look, Congress has to do this," I think there would be an attempt.  But given the divided Congress, I really don't see realistically that legislation making its way through Congress is actually a viable outcome.

SILLIMAN
Win or lose the appeal of the Open Internet Order, the question for the FCC, to some degree, is this larger future decision and future policy direction, which asks, "Where are we going to try to assert our jurisdiction?"  At its core, this question is about where the FCC's jurisdiction ends and the FTC's jurisdiction begins.  If the order and the FCC's jurisdiction is upheld on appeal, the question for the FCC then is: how aggressive are you going to be in asserting that jurisdiction in the broader Internet ecosystem and the broadband Internet ecosystem?  As you look at the evolving technology, you look at Microsoft and Skype.  You look at Google.  You look at some of the services that are going on out there.  You say, "This now gives me a clear path to assert jurisdiction over that broader Internet ecosystem."  If, on the other hand, the Court does not uphold the FCC's jurisdiction over this, then the question becomes: do you keep trying to fit this square peg into a round hole?  Do you say, "Listen, this is where the technology's going, and so I'm going to find my way by hook and by crook to find the jurisdictional hook there"?  Or, do you say, "Listen, the courts have spoken. Congress, if this is where you want the jurisdiction to be, then change the law to put jurisdiction over the Internet ecosystem with the FCC."  If jurisdiction should stay with the FTC, I would recommend people look at a very thoughtful speech that FTC Commissioner Wright gave a month or two ago in which he laid out the consumer protection angle on net neutrality, and asserted the competition law in consumer protection.  Those are the FTC's fortes and the FTC has the easy ability to handle these issues.  From a larger government policymaking perspective, the federal government would be saying we have the ability to protect consumers in this space.  This question is whether that happens in the FTC or the FCC.  And the FCC has to decide how far they want to fight that jurisdictional fight.

SOHN
It's really important to note that Verizon's challenge is not just about the open Internet rules.  It's about the FCC's ability to set rules of the road with regard to predatory billing practices and with regard to public safety.  It's about whether companies like Verizon had to have back-up battery power if there is a natural disaster… The question, in front of the court, at least in my opinion, is whether the FCC has any ancillary authority at all to regulate broadband Internet access.  It's not just about open Internet.  It's about pricing.  It's about competition.  It's about public safety.  The question is not that narrow.  There's a second question, about whether the rules themselves are arbitrary and capricious.  But it's really about FCC authority writ-large with regard to broadband Internet access.  FTC has some powers, but they don't reach a lot of things that organizations like mine are concerned with.  They reach unfair, deceptive trade practices.  That is actually quite narrow.  And they reach some anti- competitive practices.  Some of the things that we're talking about, really are anti-consumer, but not anti-competitive.  And I can see the little shell game going on.  Get the FCC out of it.  Let the FTC do it.  And then when we bring complaints to the FCC, we're told, "Well, Section 5 only really goes to unfair, deceptive trade practices."  There is an area, beyond what the FTC does, that is needed to protect consumers.  As far as the BITAG is concerned, I'm very proud of my participation.  It's the Broadband Internet Technology Advisory Group.  The purpose of that group is to determine what a reasonable network management practice is when it comes to provides managing their networks.  I'm very proud of that.  But it's a very, very narrow scope, and it's a technology group.  It's a bunch of engineers.  We're not allowed to meddle in their engineering decisions; it is not a policy organization.  Frankly, I hope it stays that way.

Will the FCC's network neutrality regulations ultimately survive Verizon's legal challenge? That question was the subject of an episode of C-SPAN's The Communicators, featuring FSF President Randolph May.