Pole-2On June 5, 2017, the United States Supreme Court granted cert in Carpenter v. United States, a case in the hotly contested area of mobile cellular location data privacy.  The question before the Court is whether law enforcement must obtain a warrant for historical cell-site location information.

The case stems from 2014, when Timothy Carpenter was sentenced for his alleged role in coordinating a series of armed robberies of smartphone vendors.  To support its case, law enforcement obtained access to 127 days’ worth of Mr. Carpenter’s cell-site location records through what is commonly referred to as a “D order” (after the subsection of the act under which the records were requested).  Whereas warrants require the government to show probable cause, under the Stored Communications Act, a D order merely requires that law enforcement present “specific and articulable facts showing that there are reasonable grounds to believe” that the records requested “are relevant and material to an ongoing criminal investigation.”  18 U.S.C. § 2703(d). 
Continue Reading Carpenters, Carriers, and Cell-Sites (Oh My!): SCOTUS to Hear Mobile Locational Privacy Case

Last week, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) struck down an FAA regulation that required the owners of small Unmanned Aircraft Systems (“UAS”) to register with the agency (the “Registration Rule”).

In 2012, Congress passed the FAA Modernization and Reform Act (“FMRA”), which prohibited the FAA from creating “any rule or regulation regarding a model aircraft.”  Under the FMRA, a model aircraft is a UAS that is:

  • capable of sustained flight in the atmosphere;
  • flown within visual line of sight of the UAS operator; and
  • flown for hobby or recreational purposes.

Continue Reading That Won’t Fly: The D.C. Circuit Strikes Down the FAA’s Registration Regime for Recreational Drones

On May 8, 2017, merely ten days after the Federal Communications Commission (“FCC”) adopted its Report & Order (“BDS Order”) deregulating the market for Business Data Services (“BDS”), Sprint and Windstream petitioned the U.S. Court of Appeals for the District of Columbia (“D.C. Circuit”) to vacate the BDS Order.

In the BDS Order, as we

25001On April 13, 2015, a notice and summary of the Federal Communications Commission’s (FCC’s) seminal Open Internet Order (the Order) was published in the Federal Register.  As we explained in an earlier blog post and client advisory, the Order includes new and modified open Internet rules; reclassifies broadband Internet access service (BIAS) as a “telecommunications service” under Title II of the Communications Act of 1934, as amended; and imposes several provisions of Title II on BIAS providers (e.g., consumer protection, privacy, and disabilities access requirements), while forbearing from others. 
Continue Reading Open Internet Rules Hit the Federal Register, Triggering Effective Dates and Appeal Deadlines

In May of this year, the National Association of Broadcasters (NAB) petitioned the D.C. Circuit to review a Public Notice issued by the Media Bureau.  The Public Notice, entitled “Processing of Broadcast Television Applications Proposing Sharing Arrangements and Contingent Interests,” explained a shift in how the Bureau will review certain broadcast license assignments and transfer

Back in January, we posted on Verizon’s attempt to appeal the FCC’s Net Neutrality order.  Verizon presented a controversial claim that the order was a "licensing" decision which limited review to the U.S. Court of Appeals for the D.C. Circuit.  The FCC opposed that interpretation.

If successful, Verizon’s preemptive move would have prevented a lottery from deciding which court of appeals considered the Net Neutrality order.  Yesterday, however, the D.C. Circuit dismissed Verizon’s appeal as premature.

Continue Reading Court Dismisses Verizon Net Neutrality Appeal — For Now

On January 20th, Verizon took the controversial move of appealing the FCC’s Net Neutrality Order before notice was published in the Federal Register.  Shortly after Verizon appealed, MetroPCS Communications filed a similar appeal, also in the D.C. Circuit and also relying on section 402(b) to assert that venue lies exclusively within the D.C. Circuit.

The FCC has moved to dismiss both petitions as premature.  Verizon opposed the motion and the FCC filed its reply yesterday.  At this time, the court has not ruled on the motion.  However, the D.C. Circuit issued a brief order denying Verizon’s motion to refer the case to the Comcast panel of judges. 

Meanwhile, the FCC’s order still has not been published in the Federal Register.  Once it is published, we expect multiple appeals to be filed, most likely in several circuit courts of appeal.  Such appeals would trigger the lottery process to determine where to consolidate the cases.

Links to the pleadings relating to the FCC’s motion to dismiss are available below.

Continue Reading Verizon Net Neutrality Appeal Update

Today, a divided FCC adopted enforceable "net neutrality" rules for the first time.  By a 3-2 vote, with all three Democrats voting in favor and both Republicans voting against, the Commission adopted a Report and Order in its Open Internet inquiry.  As Chairman Genachowski announced last month, the new rules rely upon the FCC’s "Title I" authority to adopt "basic rules of the road" to preserve the open Internet "as a platform for innovation, investment, competition and free expression."

To win the support of the other Democratic Commissioners, the Chairman agreed to several changes from his proposal last month.  Most notably, the Order applies the transparency rule and a limited blocking prohibition to wireless carriers, and — although the exact extent is unclear — appears to bar wireline broadband service providers from engaging in paid prioritization of Internet content.  The Order also adopts a definition of the "broadband Internet access services" to which the rules apply.

Commissioners Copps and Clyburn pronounced this action imperfect but sufficient to enable them to permit adoption of the Chairman’s proposal.  On the other hand, both Commissioners McDowell and Baker dissented from the Order.  Both strongly objected to the Commission’s claim of exisiting authority over Internet network management.  Commissioner McDowell also asserted that the Order would create "irreparable harm" — a factor considered by courts in granting a stay of agency orders.

The FCC action is described in more detail below.  UPDATED:  A PUBLIC NOTICE WITH THE RULES WAS RELEASED.  SEE BELOW

Continue Reading FCC Adopts Net Neutrality Rules, Endorses Accelerated Docket Complaints for Violations

Since April, the FCC has been struggling with how to react to the Court’s reversal of the Comcast P2P blocking order.  Today, Chairman Genachowski announced that he plans to move forward to adopt net neutrality rules at the FCC’s December 21 open meeting.  That announcement was met with prompt condemnation from the Republican commissioners and measured support from his fellow Democratic commissioners.

Genachowski’s speech abandons his prior proposal for a "third way" to resolve this issue.  His current approach relies upon the same Title I authority that the court of appeals found lacking, although presumably the Chairman intends to provide a better rationale connecting the rules to the Commission’s authority.  One issue that should not get lost in the shuffle, however, is that Chairman Genachowski is proposing to adopt enforceable rules that bind broadband providers for the first time.  This would replace the 2005 Policy Statement, which, as we’ve pointed out, creates enforcement problems of its own.

Follow the jump below to read the statements released today.

Continue Reading FCC’s Genachowski Proposes Net Neutrality Rules, Creates Firestorm