In The Courts

Oral Argument Held in City of Arlington, TX v. FCC

Oral argument was heard June 8, 2011 in the case of City of Arlington, TX v. Federal Communications Commission.  The case challenges the FCC’s authority to issue its November 2009 tower siting order, which imposed timeframes within which localities must take action on tower siting applications.  A decision is expected by the end of the year.

City of Chicago Loses Bid to Collect Revenues from Comcast

The Supreme Court of Illinois has ruled unanimously against the City of Chicago in its efforts to collect revenues related to the franchise fee from Comcast’s cable modem service.  The decision, handed down November 20, 2008, relied heavily on the FCC’s 2002 interpretation excluding cable modem service from inclusion in a cable operator’s 5% gross revenues for franchise fee purposes (along with its definition of cable modem service as an interstate information service), along with several Federal district court decisions.  The full text of the decision is available here.

US Court of Appeals Denies Petition for Rehearing En Banc

On Wednesday, October 29, 2008, the US Court of Appeals for the Sixth Circuit issued an Order denying the request of NATOA and ACM for a rehearing en banc (by the full court).  NATOA and ACM had sought to have the full court overturn the panel’s decision to uphold the FCC’s Franchise Order.  Next steps are under consideration.

Local Governments and Media Organizations Challenge Court’s Ruling

Alexandria, VA – The National Association of Telecommunications Officers and Advisors (NATOA) joined by its partners, the Alliance for Community Media (ACM) and the Alliance for Communications Democracy (ACD) today filed a Petition for Rehearing En Banc before the United States Court of Appeals for the Sixth Circuit on its decision that upheld the FCC’s rules adopted in the First Report and Order in the Video Franchise Docket 05-311.  “We have taken this action because our review of the panel’s decision indicates that it conflicts with Supreme Court and circuit precedent in statutory construction principles, with respect to federal agencies substituting judgment for state and local elected officials, and that it failed to properly apply the arbitrary and capricious standard for reviewing evidence supporting agency decision-making.” 

“In other words, the court ignored its own prior decisions, those of other circuits affected by its decision and those of the United States Supreme Court.  Clearly, the full court needs to consider this case, otherwise we will have a federal agency exercising an entirely free hand where Congress gave them no such authority, but in fact withheld that very power.  The concept of our federalist form of government, with reliance on the separation of power and respect for our concurrent forms of jurisdiction should not be undermined by such a narrow and ill-conceived approach,” stated Libby Beaty, NATOA’s Executive Director.  “As we stated when this decision came out, we are taking those steps we feel are necessary to ensure that the American consumer is protected and the rights of our communities and in our communities are not harmed.”

NATOA has engaged the services of Lani Williams at the Local Government Lawyers Roundtable for the preparation of the Petition and for future court action.

Download a copy of the Press Release Here

 

US Court of Appeals Upholds FCC Franchise Order

On Friday, June 27, 2008 the U.S. Court of Appeals for the Sixth Circuit (Cincinnati, OH) issued its DECISION which ruled in favor of the Federal Communications Commission’s Franchising Order.  The FCC Franchise Order, contested by NATOA, ACM, ACD, NLC and NACo, dictates a 90-day response time for local governments to grant telco requests for franchises (180 days for non-rights-of-way holders); permits redlining and reduces PEG support as well as undermines other provisions of market place negotiations between local governments and industry.  Local governments have fiduciary responsibility over public property and for the protection of consumer interests, as a result Congress has long recognized our legitimate role in franchising.  Neither the FCC nor the Court seem to “get it.” 

In response to the Wall Street Journal, NATOA Executive Director Libby Beaty stated “The federal government should not be dictating what’s going on in our local communities.”  See WSJ June 27, 2008 - Appeals Court Upholds FCC Franchise Rule