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Paul Werner is a partner in the firm’s Business Trial Practice Group and resident in the Washington, D.C. office.

On August 12, 2020, a Ninth Circuit panel affirmed three orders issued in 2018 by the Federal Communications Commission (FCC) to promote infrastructure investment and broadband deployment, including 5G small cell nodes.
Continue Reading Ninth Circuit Rejects Challenges to FCC’s One-Touch Make-Ready, Small Cell Deployment, and Local Moratoria Orders

A recent decision by the Eleventh Circuit will make it more difficult for plaintiffs to establish standing to sue under the Telephone Consumer Protection Act (TCPA). In Salcedo v. Hanna, et al., Case No. 17-14077, 2019 U.S. App. LEXIS 25967 (11th Cir. Aug. 28, 2019), the Eleventh Circuit ruled that a single text message did not cause sufficient harm to sue in federal court. As a result, “single text message” TCPA cases may be a thing of the past, at least in the federal courts across the three States in the Eleventh Circuit (Florida, Georgia, and Alabama). However, given conflict with a ruling by the Ninth Circuit, the issue may now be ripe for decision by the U.S. Supreme Court.
Continue Reading One “Chirp, Buzz, Or Blink” Is Not Enough To Sue Under The TCPA

On Thursday, August 1, 2019, the FCC took several actions to address persistent, decades-long efforts by local governments to convert their control over local rights-of-way into ever-increasing revenue streams from cable operators and other communications companies relying on those critical corridors for the provision of electronic communications. The FCC clarified that:

Continue Reading Virgil Quick Come See: FCC Drives Down Local Government Regulation of Cable Operators

On Friday, February 1, 2019, the U.S. Court of Appeals for the D.C. Circuit held a marathon oral argument in Mozilla Corp. v. FCC, No. 18-1051 (D.C. Cir. Feb. 22, 2018), in which various petitioners challenged the Federal Communications Commission’s (“Commission’s”) 2018 Restoring Internet Freedom Order (“2018 Order”).
Continue Reading D.C. Circuit Hears Challenge To Federal Communications Commission’s 2018 Restoring Internet Freedom Order

On Tuesday, the Supreme Court decided to review a case that potentially carries far reaching ramifications for litigation under the Telephone Consumer Protection Act (“TCPA”), which places restrictions on phone and fax solicitations and imposes serious penalties for violations. See 47 U.S.C. § 227, et seq. By granting certiorari in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., No. 17-1705, the Court is set to resolve the question whether the Hobbs Act requires district courts to accept the FCC’s interpretation of the TCPA’s key statutory term “advertisement.”
Continue Reading Supreme Court Poised To Alter TCPA Landscape With Review Of Key Term “Advertisement”

Earlier this week, the United States Supreme Court denied requests by the Trump Administration and telecommunications industry players to vacate a prior decision by the D.C. Circuit Court of Appeals upholding the Federal Communications Commission’s (“FCC’s”) 2015 Open Internet Order, which adopted a suite of Net Neutrality regulations. As a result, the D.C. Circuit’s earlier decision remains standing while challenges to the FCC’s 2018 Restoring Internet Freedom Order, which repealed the earlier Net Neutrality regulations, proceed before the D.C. Circuit.
Continue Reading As The “Net Neutrality” World Turns . . . .

During its most recent Term, the Supreme Court held in Lucia v. SEC that the administrative law judges (“ALJs”) that preside over adjudications at the Securities and Exchange Commission (“SEC”) are “Officers of the United States” who must be appointed pursuant to the Appointments Clause of the Constitution. 138 S.Ct. 2044, 2055 (2018). This holding necessarily calls into question the validity of the appointments of ALJs across diverse federal administrative agencies and their rulings. In light of this anticipated fall out, the Trump Administration moved swiftly to issue an Executive Order retooling the hiring process for ALJs. But whether the Court’s holding in Lucia will impact adjudications before the Federal Communications Commission (“Commission”) remains to be seen.
Continue Reading Lucia Is Likely To Have Little Impact On Waning FCC Adjudications

Promoting infrastructure investment and broadband deployment has been a top priority for Chairman Ajit Pai’s FCC. On July 12, 2018, the Chairman took a significant stride in advancing his agenda by releasing a draft report and order that would enact, among other things, a “one-touch make-ready” (OTMR) process for most third-party communications-provider attachments to utility poles.
Continue Reading FCC Seeks “Large Step” Toward Advancing Broadband Infrastructure Goals With Draft One-Touch Make-Ready Order

This week, the Federal Communications Commission’s (“FCC’s”) Restoring Internet Freedom Order took effect, rolling back the public-utility style regulation of Internet service providers (“ISPs”) pursuant to title II of the Communications Act, imposed during the prior administration by the FCC’s 2015 Open Internet Order (“2015 Order”). The agency’s return to a light touch regulatory approach has sparked public debate since FCC Chairman Ajit Pai proposed it more than a year ago. And while the FCC’s action is already the subject of several judicial challenges consolidated in the D.C. Circuit, a number of states have also sought to impose their own state-specific net neutrality legislation. But it remains to be seen whether individual states can impose net neutrality obligations on ISPs, particularly in light of the FCC’s invocation of its preemption authority in the Restoring Internet Freedom Order.
Continue Reading Back To The Future: FCC Returns To Light Touch Regulation Of The Internet

On March 16, 2018, the United States Court of Appeals for the District of Columbia Circuit issued its long awaited decision in ACA International v. FCC, in which a group of petitioners across a spectrum of industries sought review of various aspects of the Federal Communications Commission’s (FCC’s) 2015 Omnibus Declaration Ruling and Order (2015 Order). The controversial 2015 Omnibus Order adopted further regulations to implement the Telephone Consumer Protection Act (TCPA) – which was enacted more than twenty-five years ago to address certain issues with automated telemarketing calls.
Continue Reading Once Bitten, Twice Shy: FCC Revisits Its Telemarketing Regulations In Light Of The DC Circuit’s Decision Striking Down Core Requirements

As the Rolling Stones famously sing, “You can’t always get what you want.” And in the ever treacherous world of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., the Second Circuit has ruled that means a party to contract cannot unilaterally revoke consent to receive automated calls.
Continue Reading You Can’t Always Get What You Want—Second Circuit Affirms Parties Can Bargain Away TCPA Right To Revoke Consent To Automated Calls