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). 
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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

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On November 16, 2015, the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) reached a Memorandum of Understanding (MOU) in which the two agencies agreed to engage in greater coordination and collaboration on consumer protection issues, with greater respect for each agency’s jurisdiction. The MOU comes at a time when both agencies are seeking to position themselves as protectors of consumers in the digital economy.
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Mike Dover contributed to this blog post.

The Federal Communications Commission continues to pave additional avenues for building out wireless broadband networks and installing other high speed links, but questions linger over the authority of state and local governments to review and even block wireless infrastructure trying to capitalize on the FCC decisions. For example, on August 12, the Commission revised its Part 15 rules, releasing a Report and Order in ET Docket No. 07-113 that, among other things, allows unlicensed transmitters at 57-64 GHz to operate outdoors at higher power levels provided the equipment meets certain threshold requirements. The Commission envisions these regulatory changes will better support very high speed wireless data transfer and multimedia streaming over longer distances than previously could be achieved at these frequencies, as well as make the 60 GHz millimeter wave band more useful for 4G wireless backhaul connections.


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In a much anticipated decision with potentially widespread ramifications across all federal agencies charged with implementing federal statutes, the United States Supreme Court has permitted the so-called “shot clock” rules of the Federal Communications Commission (“FCC” or “Commission”) applicable to wireless siting applications to remain in effect. By a 5-4 margin on May 20, 2013,

Barbara Miller contributed to this post.

Last week, a federal appellate court issued a decision signaling a significant victory for Competitive Local Exchange Carriers (“CLECs”) that rely on Incumbent Local Exchange Carriers (“ILECs”) for transiting services in order to interconnect indirectly with other local carriers. Southern New England Tel. Co. v. Comcast Phone of Connecticut, Inc. et al., Docket No. 11-2332-cv (2d Cir. May 1, 2013).

The United States Court of Appeals for the Second Circuit (the “Court” or “Second Circuit”) held, among other things, that when an ILEC provides transit services between two indirectly interconnecting CLECs, Section 251(c)(2) of the Communications Act of 1934, as amended (the “Act”), applies and the CLEC’s are entitled to transit rates based on Total Element Long-Run Incremental Cost (“TELRIC”). The Court’s opinion affirmed a decision of the U.S. District Court for the District of Connecticut (“District Court”) which, in turn, upheld a Connecticut Department of Public Utility Control (“DPUC”) decision. The Court limited the direct application of its holding to the parties to the contract that was the subject of the suit – AT&T and Pocket Communications – but the implications of the opinion are much broader as ILECs have maintained for years that transit services do not fall within the scope of Section 251(c)(2) and are subject to market, not TELRIC, pricing.


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Barbara Miller co-authored this post.

This week, the Fourth Circuit issued an important decision concerning the jurisdiction and role of federal courts in the interpretation and enforcement of state-approved Interconnection Agreements (“ICAs”).  In Central Telephone Co. v. Sprint Communications Co., the Fourth Circuit held that plaintiffs are not required to bring claims relating to the interpretation and enforcement of state-approved ICAs to a state commission before they can be heard in federal court.  Instead, the court ruled that a party may bring a claim for breach of contract in federal court directly.  This decision opens a new option for parties seeking to interpret and enforce ICAs, at least in the states within the Fourth Circuit (which encompasses Maryland, Virginia, North Carolina, South Carolina and West Virginia).  


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In an interconnection decision that may have implications beyond its facts, a federal appellate court ruled that State public utility commissions (“State Commissions”) may rely on Section 251(a) in resolving interconnection disputes involving incumbent local exchange carriers (“ILECs”). On March 28, 2013, the U.S. Court of Appeals for the Sixth Circuit ruled that ILECS have interconnection obligations under Section 251(a) of the Communications Act of 1934, as amended (the “Act”), which State Commissions can enforce in Section 252 interconnection arbitrations. Affirming a judgment of the U.S. District Court for the Southern District of Ohio and an arbitration decision of the Public Utilities Commission of Ohio (“PUCO”), the Court found that an ILEC’s interconnection obligations are not limited by those expressly set forth in Section 251(c), as AT&T had argued. Rather, the Court held that a State Commission can impose obligations on an ILEC under Section 251(a), including an obligation to establish a point of interconnection (“POI”) on the network of a requesting interconnecting competitive local exchange carrier (“CLEC”). Significantly, this is the first decision of which we are aware by a federal appellate court expressly finding that a State Commission can impose obligations on an ILEC under Section 251(a) that differ from the ILEC-specific obligations of Section 251(c)(2).


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The suspense did not last long.  Less than five weeks after a spirited oral argument before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit (the “Court”) on January 23, 2013, the Court today affirmed key aspects of the Federal Communications Commission’s April 2011 Report and Order and Order on Reconsideration (“Report and Order”).  The Report and Order had modified major portions of the Commission’s pole attachment rules implementing the Pole Attachment Act, codified as Section 224 of the Communications Act of 1934 (the “Act”). 

The American Electricity Power Services Corporation and other electric utility companies (“Petitioners”) challenged three aspects of the FCC’s Report and Order.  (1) The Report and Order interpreted Section 224(b)(1) of the Act, which authorizes the Commission to regulate the rates, terms and conditions of “pole attachments” and assure that they are “just and reasonable,” to apply to incumbent local exchange carriers (“ILECs”) as “providers of telecommunications services.”  Building on this interpretation, the Report and Order enabled ILECs to bring complaints before the FCC against investor-owned utility pole owners on whose poles they are attached, even though the statute excludes ILECs from the definition of “telecommunications carrier” for purposes of Section 224. (2) The Commission adopted a new pole attachment rate formula applicable to telecommunications carriers (the “telecom rate formula”) specifically designed to bring the telecom rate down to the same level as that paid by cable operators when the FCC’s presumed number of attachers is used in the telecom rate formula.  (3) The Report and Order modified the FCC’s rules, which had limited to compensatory damages to be awarded only from the date of a complaint to the FCC going forward, to allow damages to be awarded for a period prior to the date of the complaint consistent with the applicable statute of limitations.

The Court denied all three challenges in their entirety, applying Chevron deference to the Commission’s interpretations.  The Court’s opinion, quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009), underscored that where the FCC modifies its regulations, as it did in the Report and Order, the hurdle the Commission must clear is a “modest” one.  Specifically, the Commission “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better.”


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Barbara Miller co-authored this post.

A few years back, the use of deep packet inspection software – software that examines individual data packets in a broadband transmission – to deliver targeted advertising was a hot topic in regulatory and privacy circles.  Those activities spawned a series of cases against the DPI companies and their Internet Service Provider (“ISP”) partners.  In one such case, the ISP just won an important victory closing a potentially troublesome area of liability.  On December 28, 2012, in Kirch v. Embarq Management Co,  the Tenth Circuit held that an ISP was not liable under the Electronic Communications Privacy Act of 1986 (“ECPA”) for authorizing an online advertising company to collect and use certain customer electronic information for the purpose of targeted direct online advertising.  This ruling effectively ends this particular case against Embarq and likely will close a chapter in the deep-packet inspection saga.  However, because the Tenth Circuit’s finding is closely tied to the facts of this case, ISPs should carefully consider potential liability under the ECPA for any actions involving the collection of customer information for purposes other than provision of ISP services.


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