Thanksgiving 2020

There are good reasons, of course, we may wish to forget the year 2020, which need not be recited here. Indeed, the jokes about ushering 2020 out the door are already legion, like this one: "I'm going to stay up on New Year's Eve this year. Not to see the New Year in, but to make sure this one leaves." Or this one: "The dumbest thing I ever did was to purchase a 2020 planner."

But Thanksgiving, by definition, is not a time of forgetting, but rather of remembering. The act of giving thanks – and counting blessings – necessarily requires remembrance.

On this particular Thanksgiving, especially in the midst of our current travails, we should not forget that this is the 400^th anniversary of the Mayflower voyage, the founding of Plymouth Colony, and the signing, on November 11, 1620, of the Mayflower Compact. Less than half of the 102 passengers aboard the Mayflower were members of the English separatist group that earlier had fled to Leyden in the Netherlands in search of religious freedom. It was only later that the entire group became known as Pilgrims.

The Mayflower Compact, brief as it is, is worthy of more attention than it has received on this 400^th anniversary, during a year in which so much attention has been focused on America's supposed ills rather than the ideas and ideals embodied in its foundational principles. The Mayflower's original destination was near the mouth of the Hudson River. But when rough seas blew the Mayflower off-course and the Pilgrims landed at what is now Plymouth, they understood that they were in territory beyond the authority that they had been granted. Hence the need for an agreement – which we now call the Mayflower Compact and which the Pilgrims called a "covenant" – to govern their affairs. The covenant was signed by all 41 of the male passengers aboard the Mayflower.

The agreement declares the Pilgrims' purpose "to covenant & combine ourselves together into a civill body politick, for our better ordering, & preservation & furtherance of the ends" of planting a colony. And it continues, "to enacte, constitute, and frame shuch just & equall lawes, ordinances, Acts, constitutions, & offices, from time to time, as shall be thought most meete & convenient for the generall good of the Colonie: unto which we promise all submission and obedience." I've retained the original spelling here, but hopefully the meaning is clear.

The Compact is simple but nevertheless foundational as a declaration of self-government. Those combining together in a "civil body politic" agree to submit to the rule of law under "just and equal" laws, not merely any laws.

The Compact was not a full-blown plan of government. That would await the Constitution of 1787. But it was a foundation upon which future advances in self-government would be built. And in light of the principles established in November 1620 on the Mayflower, the Compact is an important part of the American story.

Fully half of the Mayflower's Pilgrims died of disease and starvation in their first winter in the New World. So there was reason enough for those who survived to assemble in the autumn of 1621 for a feast of "Thanksgiving" with the Pokanoket Wampanoags, who had shared advice on planting and harvesting.

The year 2020 will always be associated with this pandemic, which has caused so much suffering. But in America, as always, we have much for which to be grateful on this Thanksgiving. The prospect of a highly effective vaccine developed in record time, along with the quickening availability of more proven therapeutics, is reason enough to be hopeful – and thankful.

Of course, for many, our Thanksgiving holiday necessarily will be much different this year than ever before, or even than we had envisioned a couple of weeks ago. But amidst whatever other thoughts we entertain this Thanksgiving, recalling the Mayflower Compact should be cause for celebrating the 400^th anniversary of an agreement articulating what became fundamental American principles – rule by consent of the governed under just and equal laws.

In closing, it is worth recalling this Thanksgiving, as much now as when James Madison published Federalist No. 14 on November 30, 1787, his plea to his fellow countrymen: "Harken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family."

May this Thanksgiving help bring us all closer to our families, friends, and countrymen, bound together by what Madison called our "many cords of affection." 

With best wishes,

Senate Committee Passes Bill Requiring Mid-Band Spectrum for 5G

On November 18, the Senate Committee on Commerce, Science, and Transportation passed S. 4803 – the "Beat CHINA for 5G Act" – by a voice vote. If signed into law, the Act would require the FCC to begin a competitive bidding auction for commercially-licensed use of the 3.45-3.55 GHz band before the end of 2021. As Free State Foundation scholars have emphasized repeatedly, there is an urgent need for more mid-band spectrum for 5G. The 100 MHz of mid-band spectrum identified in S.4803 would help expand 5G network services in the U.S. The FCC has already commenced a proceeding on the 3.45-3.55 GHz band, and the Act would ensure that the auction takes place. A companion bill – H.R. 8548 – has been introduced in the House of Representatives.

Trump Administration Releases its Joint Strategic Plan for IP Enforcement

On November 9, the Intellectual Property Enforcement Coordinator (IPEC) released the 2020 to 2023 Joint Strategic Plan by coordinated federal agencies for promoting and protecting intellectual property (IP) rights. 

The IPEC-developed plan provides an overview of recent and ongoing strategic efforts by the Trump Administration in all areas of IP policy, including copyrights. And it addresses domestic IP policy issues as well as initiatives to ensure that Americans' IP rights receive protections internationally. Included in the Joint Strategic Plan are efforts to better secure copyrights from infringement – particularly online infringement:

The [U.S.-China] Phase One Agreement requires China to provide effective and expeditious action against infringement in the online environment, including by requiring expeditious takedowns and by ensuring the validity of notices and counter notices. It also requires China to take effective action against e-commerce platforms that fail to take necessary measures against infringement. The United States and China agreed to address additional intellectual property issues, including with regard to unauthorized camcording of motion pictures and copyright protection for sporting event broadcasts, in future negotiations... 

 

The Justice Department and the Department of Homeland Security will continue to aggressively investigate and prosecute individuals and corporations that engage in large-scale online copyright piracy (through illicit streaming services and anti-circumvention devices), which not only violates the rights of copyright holders but also often involves the commission of other serious crimes such as money laundering and tax evasion… In addition, the Justice Department, DHS, and other Federal agencies (as appropriate) will also continue to work with foreign law enforcement and other governmental offices to prosecute and otherwise prevent large-scale online copyright piracy, including the large-scale online pirates that are identified in USTR’s annual List of Notorious Markets... 

 

The Department of Homeland Security (U.S. Customs and Border Protection (CBP)) will continue to modernize, update and expand the existing e-Recordation program, which provides right holders the opportunity to record their registered trademarks and copyrights to receive enhanced border enforcement of the IP. DHS will continue to provide education and outreach to the industry regarding the critical importance of obtaining trademark and copyright recordations in order to stem the flow of infringing goods into the United States. DHS will continue to educate personnel at all Ports of Entry on the importance of IP enforcement, and arm them with the necessary tools to detect and interdict infringing goods at the border...

 

The United States will continue to support and encourage the broader and more regularized adoption of voluntary "Trusted Notifier" agreements involving Internet domain registries. These agreements have proven effective in removing websites that engage in large-scale copyright piracy, as has been demonstrated in the implementation of the agreements that the MPAA (now, the MPA) entered into in 2016 with the Radix and Donut registries.

We will likely have more to say on the Joint Strategic Plan – particularly its call for further examination of the copyright "notice-and-takedown" system for removing expeditiously infringing content from Internet websites. Free State Foundation President Randolph May and I wrote about the need for reforms to the "notice-and-takedown" provision in the Digital Millennium Copyright Act in our June 2020 Perspectives from FSF Scholars paper, "Copyright Office Report Should Spur Modernizing the DMCA."

House Passes Bill to Modernize Federal Spectrum IT

On November 17, the U.S. House of Representatives passed H.R. 7310 – the Spectrum IT Modernization Act of 2020 – by a voice vote. The Act would require NTIA to submit a plan for modernizing its spectrum information technology systems and also require federal agencies that use federally-assigned spectrum to submit to plans for modernizing as well as increasing the effectiveness their own infrastructure.  

Under the bill, the NTIA would report to the Congress on its own management of spectrum infrastructure. Additionally, each agency that uses federally assigned spectrum would submit a plan to the NTIA describing its plans to modernize its infrastructure to use it more effectively. Additionally, the Act would require the Comptroller General of the United States to conduct oversight of NTIA's spectrum IT modernization and report to Congress annually on the implementation of NTIA's plan.

In House floor remarks on the Act, H.R. 7310's sponsor and House Energy and Commerce Committee Chairman Frank Pallone stated that the bill would ensure that systems for using federal spectrum are compatible and interoperable between federal agencies. Ranking Committee member Greg Walden, in his floor remarks, called the Act "a good government bill."

 

By all accounts, H.R. 7310 is a reasonable and worthwhile measure that would bring about improvements in federal agencies' use and coordination of spectrum. The Senate version of the Act, S.  3717, has been favorably reported by the Senate Committee on Commerce, Science, and Transportation. 

MEDIA ADVISORY: FCC's Actions Today Display Commendable Bipartisan Unity

The following statement may be attributed to Free State Foundation President Randolph May regarding today's actions by the FCC:

In a series of votes today, the FCC took some important steps to advance sound communications policy. Probably the most consequential action was the adoption of an order that immediately makes available additional spectrum for next-generation WiFi in the 5.9 GHZ spectrum band, while also reserving spectrum to be used to improve auto safety. While it is not to be expected that the commissioners always will agree across party lines on all consequential matters, nor should they, today's actions show that on many matters, especially those that are more technically and engineering-oriented such as spectrum allocations, they can and do agree on a bipartisan basis. In today's environment, and given the importance of more ubiquitous broadband connectivity and 5G deployment to the nation's social and economic well-being, this is worthy of note, and commendation.

A Troubling Allegation of Taxpayer-Funded Broadband Overbuilding

With a recent tweet (see below), FCC Commissioner Michael O'Rielly focused attention on a family-owned ISP's claim that government subsidies have been allocated to overbuild its existing broadband service footprint. The expansion of network infrastructure to areas in fact unserved is a worthy goal, one likely to receive increased attention in the months ahead. But sound policy should foster, not threaten, the central role that private investment performs in the deployment of high-speed Internet access to all Americans.

My apologies to Tongue River Communications, WY family business apparently facing government-subsidized overbuilding. If accurate, it’s shameful given many Americans have NO broadband access. All fed broadband funding must strongly & clearly prohibit such waste & target UNSERVED. https://t.co/i2vgkTJXUz

— Mike O’Rielly (@mikeofcc) November 3, 2020

Late last week, the FCC released updated broadband deployment data based upon Form 477 filings. The number of unserved Americans decreased by 46 percent from 2016 to 2019, to 14.5 million. That is largely the result of private investment by broadband providers totaling $1.7 trillion between 1996 and 2018 – including $80 billion in 2018 alone.

As Free State Foundation scholars have argued time and again, however, the use of taxpayer dollars to subsidize networks that compete with privately funded providers undermines future investment incentives and threatens the continued expansion of access to unserved areas.

In a post written for the ACA Connects blog, Robert Jacobson, co-owner (with his wife and son) of Tongue River Communications in Ranchester, Wyoming, describes a concerning instance of the use of CARES Act funding to construct competing network facilities where it already provides service satisfying – indeed, exceeding – the FCCs definition of "broadband (25/3 Mbps).

According to Mr. Jacobson, these subsidies "could put Tongue River Communications on the brink of ruin in no time at all."

While I can't vouch for the veracity of his allegations, to the extent that they are accurate, they serve as a compelling example why government intervention must be limited to those areas where the economics have proven too challenging for private industry. Broadband service providers, large and small, have connected the vast majority of Americans. Government policies should encourage them to continue those efforts.

Don't Miss the ABA's Annual Administrative Law Conference

The ABA's Section of Administrative Law and Regulatory Practice is holding its annual conference this week on November 19 - 20. While this year the conference is virtual, the most important aspect of the event has not changed. The conference will feature, as it does each year, an extraordinary number of expert speakers on a diverse array of administrative law and regulatory practice topics.

This blog by Section Chair Chris Walker contains links to the agenda, all the program information, and the registration details.

The Free State Foundation is proud to be a sponsor of the Section's Awards Program with special recognition for those who have contributed to ad law scholarship and to government service.

So, if you are interested in Ad Law, this is a can't miss conference. And, btw, CLE credit is available.

The conference brochure is here.

 

FCC Proposal Would Reform Legacy Video Rules for Programming Disputes

At its November 18 public meeting, the FCC will be voting on a proposed rulemaking that would make needed updates and fixes to its legacy rules for video services. The Commission's rulemaking deserves a "yes" vote. The federal regulatory framework for multichannel video programming distributor (MVPD) services has long been outdated. Until Congress updates the law, the Commission should do all it can to remove old unnecessary rules and streamline its procedures to reduce regulatory burdens. The Commission's proposed rulemaking regarding program carriage and other legacy video provisions furthers this important end.  

If adopted, the Commission's rulemaking would, among other things, clarify circumstances that trigger the start of the 1-year the statute of limitations for filing complaints with the Commission in disputes involving program carriage, program access, and good-faith retransmission consent. Also, ALJ decisions regarding such disputes would not take effect until 50 days after their release. And they would be automatically stayed upon the filing of appeals with the Commission, with an informal 180-day shot clock for the Commission to circulate a decision reviewing ALJ decisions in those matters.

For all the advances in video distribution technology and emergence of new video services, much of the MVPD market is still subject to regulatory restrictions that originated in the early 1990s, if not before. While replacement of the old framework awaits, the proposed rulemaking for program carriage and other disputes, part of its Media Modernization Initiative, is a worthwhile reform measure and it ought to be adopted. And the Commission's rulemaking ought to serve as another reminder that legacy regulation of MVPD services makes no sense in the era of Netflix, Hulu, and Disney+ and many other new video programing alternatives. 

The D.C. Circuit Upholds Removal of Legacy Investment Barriers

A decision by the D.C. Circuit on November 3 sets an important precedent for paring back 25-year-old forced-access regulation of communications networks. The court's ruling in Comptel v. FCC upheld the Commission's 2019 UNE Forbearance Order, which lifts certain legacy unbundling and resale requirements. Wireless and VoIP have long since eclipsed copper wire-based voice services, and the consumer benefits from intermodal competition made the old restrictions unnecessary. The D.C. Circuit's decision provides solid legal support for future agency actions to lift outdated regulations and encourage deployment of next-generation networks. 

The Telecommunications Act of 1996 requires incumbent local exchange carriers (ILECs) to make their facilities available to direct competitors at government-set rates. Back in the early 1990s, ILECs using copper wire-based Time Division Multiplexing (TDM) technologies were the dominant providers of local voice services. The 1996 Act's forced-sharing requirements, it was supposed, would enable competitors to lease capacity from ILEC facilities while building out their own facilities, thus leading to facilities-based competition among wireline voice providers. 

At issue in Comptel v. FCC was the Commission's decision in the 2019 UNE Forbearance Order to cease enforcing unbundling mandates regarding analog loops at government-set rates and to also cease enforcing its avoided-cost resale obligations. Under those obligations, ILECs must resell their retail service at wholesale, and at regulated rates, to their competitors.  

In reviewing the record, the D.C. Circuit observed the stunning difference in the voice service market today compared to more than two decades ago:

Rather than the near-complete monopoly that incumbents had as recently as 1996, now incumbents account for just 12% of all voice connections (both wired and mobile voice plans) and 37% of all wireline telephone connections (the subset of all voice connections that are physical rather than wireless—e.g., TDM copper, cable, and fiber). Lines sold through the unbundled copper loops account for less than 0.5% of all voice connections (less than 2% of wireline connections) and resold lines account for just over 1% of all voice connections (3% of wireline connections). Further, the Commission found that next-generation voice services like mobile phones and Voice Over Internet Protocol (VoIP) services are rapidly growing, whereas traditional copper wire voice services are declining in both market share and in absolute terms. 

Data released since the 2019 UNE Forbearance Order shows that consumers migration to wireless and VoIP services continues. According to an order released by the Commission on October 28 of this year: "Incumbent LECs' wireline voice subscriptions now account for… only 9% of all voice subscriptions across all technologies." Observing further migration in the residential and enterprise services markets away from TDM switched access lines, the order stated that "[t]he widespread deployment of 5G wireless networks will only accelerate this process."

 

Importantly, in Comptel v. FCC, the D.C. Circuit upheld the analytical basis for the Commission's deregulatory action in view of today's voice services market:

The Commission looked, reasonably in our opinion, at the whole national market for voice transmission, and the incumbents' share of that market is declining rapidly. Indeed, from the point of view of the incumbents, alarmingly. Far from the market behemoths the incumbents were in the late 90s, they look more like the sick men of the voice transmission market. Their copper wire advantage is of rapidly declining importance. It is myopic to look at the incumbents' possession of copper loops as giving them meaningful market power in the national voice market. And therefore what earthly economic reason would justify requiring them to provide their copper wire services to competitors at a subsidized price? 

Also important was the D.C. Circuit's unwillingness to limit the Commission's forbearance authority because that agency declined to grant deregulatory relief several years earlier. The D.C. Circuit rejected the notion that the Commission's 2010 Qwest Phoenix MSA Order precluded the grant of relief in the 2019 UNE Forbearance Order. As the court pointed out, the two orders and their contexts were decidedly different. Whereas the 2010 order denied forbearance relief from nationwide regulation in a specific geographic area using a different kind of market power analysis, the 2019 order granted nationwide relief based on an assessment of national market conditions that demonstrated vibrant intermodal competition. 

 

Citing the Supreme Court's decision in NCTA v. Brand X (2005), the D.C. Circuit acknowledged that "agencies are expected to reevaluate the wisdom of their policies in response to changing factual circumstances." According to the D.C. Circuit: "[h]ere, the FCC explained how the market had evolved and concluded—we think reasonably—that intermodal competition is now sufficient to discipline prices." And the court reiterated its precedents that the Section 10 forbearance authority imposes "no particular mode of market analysis or level of geographic rigor," as it leaves the Commission free to "tailor the forbearance inquiry to the situation at hand." 

 

As the D.C. Circuit stated, "our precedent and Commission precedent is clear: the Commission may forbear to encourage the deployment of next-generation facilities." Indeed, the decision in Comptel v. FCC should encourage future exercises of the Commission's unique forbearance authority to clear away legacy telecommunications regulation. The nation's gigabit and 5G future – and consumer welfare – depend on competing communications providers investing in their own facilities rather relying on forced access regulation and government price controls.  

GSMA Report Projects 5G Preeminence in 2025

On October 27, GSMA Intelligence released its "Mobile Economy North American 2020" report. It looks at the recent mobile services landscape and projects mobile growth in investment, job creation, 5G adoption, and other consumer use habits for the U.S., Canada, and Caribbean Islands up to 2025. 

Looking back at 2019, the report observed that mobile technologies and services generated 4.8% of gross domestic product (GDP) in North America, and supported over 2 million jobs – directly and indirectly. Regarding growth of next-generation mobile wireless services, the report had this to say:

Although the rate of 5G adoption was lower than initially expected in the first half of 2020 because of the pandemic, this is likely to be a blip. North America will reach 100 million 5G connections in 2022, driven by continued network investments from operators and the expanding range of 5G smartphones at varying price points. By 2025, North America will have become the first region where 5G accounts for more than 50% of total connections.

Although most of GSMA report's projections concern the North American region as a whole, it did offer some insights specific to the U.S. By 2025, the percentage of Americans connected via 5G will grow to 55% compared to about 1% in 2019. Also, smartphone adoption in the U.S. is projected to rise to 93% in 2025, up from 85% in 2019. 

 

In terms of public policies needed to expedite 5G network deployment and adoption by consumer, the report emphasized that mobile service providers need streamlined local governmental processes for approving new infrastructure construction and upgrades. Mobile service providers "also need timely and sufficient availability of mid-range spectrum, which offers a balance of coverage and capacity that is critical to 5G's success. Making this spectrum available has sometimes proved to be a challenge due to incumbent users in prime bands, including government users."

Maine's Attorney General Gives Up Cable Billing Law Fight for Now, Appeal May Follow

A recent federal court decision held Maine's law restricting how cable operators bill their customers to be "unambiguously preempted" by the 1984 Cable Act. State Attorney General Aaron Frey in response has agreed to stand down at the district court level, but an appeal is expected.

As I described in a June post to the Free State Foundation's blog, earlier this year Maine enacted misguided legislation requiring cable operators, but not other providers of video content, to provide refunds to subscribers who cancel their service in the middle of a monthly billing cycle. Charter Communications, Inc. and its local subsidiary ("Charter") challenged that law before the United States District Court of Maine.

As I noted in a recent Perspectives from FSF Scholars, on October 7, the United District Court of Maine agreed that the law indeed does regulate "rates for the provision of cable service" – and therefore is "unambiguously preempted" by Sections 623(a)(2) and 636(c) of the 1984 Cable Act.

Rather than continue to fight this out before the district court, Maine's Attorney General and Charter together filed a Joint Motion to Grant Summary Judgment to Plaintiffs and Enter Final Judgment. On November 2, the court granted that motion.

The state AG has preserved his right to appeal the district court's decision, and such a challenge is expected. Until then, however, the law will not be enforced.

Without question this is the right outcome. Nearly four decades ago, Congress made clear its intention that competition, rather than regulation, should keep cable rates in check. In 2020, robust rivalries in the video distribution marketplace effectively perform that role.

By contrast, legislation targeting cable operators but not their rivals – Direct Broadcast Satellite (DBS) operators, telco TV providers, Internet-based streaming services, multicasting broadcasters, and others – only interferes with the pro-consumer operation of marketplace forces.

This Year's Federalist Society Convention Is Free! You Should Register!

No one wished the pandemic upon us, of course, and the sooner the better it's history, we'll all be thankful. But, in the meantime, given the present reality, here is something to be thankful for in November, aside from Thanksgiving.

The Federalist Society’s annual convention is always an opportunity to learn and to be stimulated, and this year's 2020 National Lawyers Convention, which will be hosted all next week as a free virtual conference, is no exception. All events, including a just-added address by Justice Alito, are online, open to the public, and free of charge (there is a nominal fee for a substantial amount of CLE). 

Please review the schedule of events and register HERE for all panels you would like to attend – each panel has a unique registration link so please register accordingly. Or you can simply access the live stream on the date and time of the most interesting events via the FedSoc website, YouTube, Facebook, or Twitter. 

Justice Alito will deliver the keynote address next Thursday at 8:00 p.m. eastern time. Other Convention highlights include addresses by Judge Janice Rogers Brown (ret.) and Labor Secretary Eugene Scalia, along with a nearly endless list of panel discussions:

·       Religious Liberty and the New Court 

·       EPA Turns 50: A Debate on Environmental Progress and Regulatory Overreach

·       Prosecutorial Discretion, Partisanship, and the Rule of Law

·       Regulatory Practice and Oversight in 2021 and Beyond

·       Rule of Law, or Just Making it Up? First Amendment Tiered Scrutiny 

·       Freedom of Association in the Legal Profession

·       Regulating Social Media

·       Are MDL Judges Too Powerful?

·       The Law, China, and the Possible New Cold War

·       Agency Leaders on Labor Policy 

·       Intellectual Property Rights and the Rule of Law

·       Modern Quandaries of Law Enforcement

·       The Future of the Second Amendment’s Right to Keep and Bear Arms:  From the Supreme Court to Social Unrest in the Streets

·       Agency Leaders on Cryptocurrency, Blockchain, and the Evolution of a Central Bank Digital Currency

·       Emergency Powers and the Rule of Law

Usually the registration price is quite steep -- but well worth it. This year the entire Convention is free to attend and is open to the public. 

I heartily recommend you check out the agenda and register. 

Click to register for the National Lawyers Convention.

 

Court Rules that the Commission's RF Rules Preempt State Law Claims

On October 29, the U.S. District Court for the Northern District of California ruled that the FCC's radio frequency (RF) emissions regulations preempt disclosure-related tort and consumer fraud claims. In Cohen v. Apple, District Judge William Alsup issued an order on summary judgment that dismissed putative class action claims that Apple marketed iPhones for use on or in close proximity to the body but failed to disclose that such use would allegedly expose consumers to RF radiation levels above federal standards and also failed to disclose the alleged risks from that exposure. 

According to a statement filed with the District Court by FCC General Counsel Thomas Johnson: "if plaintiffs were to prevail in that challenge, they would undermine the FCC's efforts to create and implement a uniform and reliable process for certifying that cell phones comply with RF limits." 

Applying preemption precedents such as Geier v. American Honda Motor Company (2000), the District Court agreed with the Commission:

The equipment-authorization regime represents a "deliberate choice" to establish uniform technical standards embodying a careful balance between safety and efficiency. If successful, plaintiffs' claims could set the stage for a patchwork of state-required testing procedures, increasing the burden on manufacturers and thereby upsetting the efficiency that the uniform standards and testing procedures provide. Geier, 529 U.S. [861] at 879–81; Buckman [Co. v. Plaintiffs' Legal Comm., 531 U.S. [341] at 353 [(2001)]. As it stated, "[l]awsuits like this one would needlessly disrupt the Commission's certification process and improperly impede the marketing of cell phones that the FCC has found to be safe" (FCC Statement at 16). Even though plaintiffs' state-law claims "attempt[ ] to achieve one of the same goals as federal law" — namely, safety — the enforcement of the equipment-authorization regime by state tort suits such as plaintiffs' would upset the balance struck by the regulations and must fall aside. Arizona [v. U.S.], 567 U.S. [387] at 406 [(2012)]. 

The District Court was unpersuaded that plaintiffs' claims that the iPhones exceeded the Commission's safety standards and thereby avoided any conflict with federal objectives. As the District Court observed: "The Commission is amply empowered to investigate complaints and petitions calling into question the continued compliance of certified devices with its technical standards." And the court noted that the FCC Lab investigated the Chicago Tribune story about supposed iPhone noncompliance with the Commission's RF standards that prompted the putative class action lawsuit. Wrote the court: 

 

The FCC Lab tested commercially-available iPhones as well as a model iPhone provided by Apple, and each demonstrated compliance when tested at the test separation distances used in their original certification filing (not at two millimeters, as the Tribune additionally had) and consistent with OED's parameters. The Lab found no evidence of violations of the technical standards. Apple’s iPhones have thus demonstrated compliance with its exposure limits not once but twice (Dkt. No. 104-11). Allowing a federal jury to now second-guess the agency determinations would interfere with the balance struck in the equipment-authorization program. The federal regulations must displace plaintiffs' claims. 

 

Additionally, the District Court pointed out that plaintiffs and would-be plaintiffs are not left without remedies: "Aside from enforcement bureau actions as described, which are triggered by complaints or petitions filed with the Commission, plaintiffs may also challenge agency rulemaking directly." The court referred to the pending legal challenge to the Commission's 2019 RF Order, which is pending at the D.C. Circuit in Environmental Health Trust v. FCC.

 

The District Court's ruling appears sound and consistent with preemption precedents. My blog post from September 21 discussed a decision by the Northern District of California that the City of Berkeley's ordinance overwarned against the dangers of RF emissions and is preempted by FCC regulation. 

 

Cohen v. Apple provides a useful example of a court applying the Supreme Court's decision in Geier to conflicting state law claims. In his September 2020 Perspectives from FSF Scholars paper "Day of Reckoning Approaches for California Net Neutrality Law," Professor and Free State Foundation Board of Academic Advisors Member Daniel Lyons discusses Geier and conflict preemption in the context of the legal challenge to California's net neutrality regulation law in U.S. v. California – a case now pending before the Eastern District of California. 

FCC Orders on Broadband Infrastructure Withstand Further Legal Challenges

On October 22, the U.S. Court of Appeals for the 9th Circuit issued an order denying en banc review of the August 2020 decision in City of Portland v. U.S. In that earlier decision, a panel of the 9th Circuit upheld FCC orders that reformed the agency's rules regarding broadband infrastructure siting and pole attachments. Among other things, the court's decision upheld most of the Commission's Small Cell Order, which clears away barriers to installing antennas that are crucial for 5G network services.  

The City of Portland v. U.S. decision was the subject of my blog post on September 2. 

Incidentally, FCC General Counsel Thomas Johnson's October 2020 legal opinion on the authority of the Commission to interpret Section 230 of the Communications Act cited the court's decision. His opinion touched on the court's holding regarding the Commission's authority to interpret of ambiguous statutory provisions and the preemptive effect of such interpretations: 

[I]n City of Portland v. FCC, 969 F.3d 1020 (9th Cir. 2020), the U.S. Court of Appeals for the Ninth Circuit earlier this year largely affirmed two FCC orders clarifying the scope of a preemption provision in the Communications Act that provides that states and localities may not take actions that "have the effect of prohibiting" telecommunications service. Citing City of Arlington, the court said that "[w]here terms of the Telecommunications Act are ambiguous, we defer to the FCC's reasonable interpretations."

General Counsel Johnson went on to write that "City of Arlington [v. FCC, 569 U.S. 290 (2013)] and City of Portland make clear that the FCC can clarify even those ambiguous statutory provisions within the Act that are arguably directed toward courts—such as preemption or jurisdictional provisions."