A court injunction sought by top ISPs to ban disclosure of subscriber data in California could disrupt the authority of state commissions across the country, NARUC warned Friday. In an amicus brief (in Pacer) at the U.S. District Court in San Francisco, NARUC joined the California Public Utilities Commission and The Utility Reform Network in opposing the ISP lawsuit. NARUC General Counsel Brad Ramsay said to expect an appeal to the 9th U.S. Circuit Court of Appeals if the district court rules against the CPUC.
Notable CROSS rulings
Some eighth-floor Democrats may be open to a compromise on media ownership that would change or eliminate newspaper cross-ownership rules, and discussion of changing the draft media ownership order to reflect that means it's unlikely the order will be released Wednesday on its must-vote deadline, former FCC officials told us. The deadline was triggered by the item having received votes from all three Democratic commissioners two weeks ago, but lifting newspaper cross-ownership would be a change from the version of the item that was voted, and Chairman Tom Wheeler is expected to extend the deadline, the officials said. Rolling back newspaper/cross-ownership could pave the way for a partial approval of the media ownership order by all five commissioners, which Wheeler's office would prefer, the former FCC officials told us. An FCC spokesperson declined comment.
Public interest groups support the FCC plan to leave media ownership rules largely intact but are “disappointed” in the FCC's failure to study broadcast ownership diversity, said a joint filing Monday by groups including the American Civil Liberties Union, Free Press, Common Cause, the National Hispanic Media Coalition, Asian Americans Advancing Justice and the United Church of Christ Communications Office (UCC). The public interest advocates and NAB are battling via ex parte filings over proposed changes to the newspaper/broadcast ownership rule, though a majority of commissioners already voted on the draft quadrennial review order and the final order is expected to be released by next week (see 1607140069). “Eliminating the newspaper broadcast rule will aid neither small broadcasters or newspapers, nor such outlets owned by women and people of color,” said the public interest groups' filing. “Retaining a rule that deters investment by broadcasters in the struggling print newspaper industry certainly cannot serve the public interest,” NAB said in a filing Tuesday.
Dish Network's blanket prohibition against workers soliciting in work areas during nonwork time "flies in the face of settled precedent" that makes it unlawful for employers to require prior approval to take part in activities protected by the National Labor Relations Act, the National Labor Relations Board (NLRB) said in a brief (in Pacer) filed Monday with the 10th U.S. Circuit Court of Appeals. The brief is in a pair of consolidated appellate cases, with Dish petitioning the court to review a board order issued in March against it and the NLRB cross-applying for enforcement of that order requiring the company to rehire a worker it fired and to rescind its solicitation policy. In its brief, the NLRB also rejected Dish's argument the agency must apply the special industry rules that cover retail establishments and permit more restrictive solicitation bans, since the Colorado call center at the heart of the complaint is not a retail establishment and there is no common area where employees and customers physically mix. And it said the evidence was clear the terminated worker was let go for soliciting coworkers to join a lawsuit regarding Dish's wage practices, contrary to Dish's claims the discharge was for putting a customer on silent mode. The NLRB dismissed Dish arguments the agency failed to show unlawful motivation, improperly relied on "generalized" animus against the worker and should have relied on Dish's business judgment for the firing. The agency said Dish mischaracterizes its analysis, which focused in part on the close timing between the employee's soliciting workers and his subsequent firing, and it isn't required to show additional animus beyond whatever animus was behind the contested action itself, such as animus against the employee personally. Dish didn't comment Tuesday.
Axis Insurance is responsible for defending and indemnifying Maryland's Ellicott City Cable in its legal fight against DirecTV, U.S. District Judge Richard Bennett of Baltimore ruled in a memorandum opinion (in Pacer) Friday. DirecTV sued Sky Cable, Ellicott and their owners in 2013, alleging DirecTV agent Sky Cable was fraudulently using the DirecTV Multiple Dwelling Unit Bulk Program to get discounted subscription rates for clients including Ellicott; that case settled in November 2015. After Ellicott notified Axis about the suit, the insurer denied coverage on the grounds the underlying action came from Ellicott's alleged intentional unauthorized use of DirecTV programming and is within the exclusions of the liability policies it issued, Bennett said. In the opinion, the judge dismissed a pair of arguments Axis made about those exclusions, denying an Axis motion for dismissal and granting an Ellicott cross-motion for partial summary judgment. Axis didn't comment Monday.
Domain name registry Donuts filed a lawsuit Friday against ICANN seeking a temporary halt to the scheduled Wednesday public auction of the .web generic top-level domain (gTLD) and $10 million in damages. The lawsuit (in Pacer), filed via Donuts’ Ruby Glen subsidiary in U.S. District Court in Los Angeles, also seeks a declaratory ruling that would invalidate the anti-lawsuit covenant placed in all gTLD applications. Donuts claims ICANN breached both its contract with Donuts signed when the registry filed in May 2012 to contend for the .web gTLD and the accompanying covenant of good faith and fair dealing. The registry claims ICANN’s .web application process has allowed unfair competition practices, and ICANN was negligent in not exercising due diligence in investigating what Donuts claims are discrepancies in rival .web applicant Nu Dot Co’s disclosures about its governance structure.
Verizon is buying Yahoo’s operating business for $4.83 billion in cash, “subject to customary closing adjustments,” the companies said Monday. The deal is expected to be approved by regulators (see 1606070054), but privacy advocates raised concerns after it was announced. The FCC is considering privacy rules for ISPs, with a final order expected to be adopted under Chairman Tom Wheeler (see 1607070052).
Fox News Network has shown the "extraordinary circumstance" that would warrant more time to file a reply brief in its litigation against TVEyes, though if the court grants that extension, it should give TVEyes more time for its reply brief due Aug. 15 and for filing the deferred appendix, TVEyes said in opposition (in Pacer) filed Thursday in the 2nd U.S. Circuit Court of Appeals. Fox in its motion (in Pacer) filed earlier this month sought to move the deadline for its reply in support of its cross-appeal from Aug. 29 to Sept. 15; in it, Fox cited the importance and complexity of the issues in the case, the interests of parity and the summer holiday season. With 13 amicus briefs having been filed in the appeal of a U.S. District Court decision that TVEyes' archiving function is fair use, but emailing, downloading and date/time searches aren't, and with a subsequent injunction (see 1606230036), Fox said, "the parties' appellate briefs are, and necessarily must be, lengthy and unusually meticulous as they parse nuanced issues of copyright law and the technology involved," thus requiring more time. TVEyes in its opposition said none of those cited issues is on par with the "extraordinary circumstances" spelled out in Local Rule 27.1(f). "Most cases to come before this court involve 'important' (and often 'complex') issues with fully developed records," TVEyes said.
A hotly anticipated GOP fight for leadership of the House Commerce Committee is less than six months away, and four of the known likely contenders told us they want a renewed committee focus on rewriting the 1996 Telecom Act in the next Congress. Two key lawmakers seen as interested for more than a year are the more-senior Rep. John Shimkus, R-Ill., who never hid his intentions, and Communications Subcommittee Chairman Greg Walden, R-Ore., who only recently began expressing public interest (see 1505140064 and 1509280058). Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., and Rep. Joe Barton, R-Texas, also may be in the mix.
Lobbying continues for and against loosening media ownership rules, filings last week in FCC docket 14-50 show, as a draft order might largely stick to some current rules with possible leeway for broadcasters and/or ways for them to get case-by-case OK for owning daily newspapers in the same market as stations (see 1607210055). Common Cause Special Adviser and ex-Democratic Commissioner Michael Copps told Commissioner Mignon Clyburn Chief of Staff David Grossman that he hopes the agency will keep the cross-ownership rule. "This rule is as timely and important now as when it was instituted," wrote Copps. "Diversity of ownership and viewpoint have been harmed by media industry consolidation, and our civic dialogue has suffered from fewer voices in communities." A shuttered paper "can no longer provide a viewpoint or serve as a 'voice,'" wrote NAB General Counsel Rick Kaplan. "The only result that can rationally be expected from the continued prohibition is to hasten the demise of print newspapers." National Hispanic Media Coalition General Counsel Jessica González told Grossman that NHMC opposes NAB's calls to nix the cross-ownership rule, she said. "The U.S. Court of Appeals for the Third Circuit has ordered the FCC to first examine the impact of its rules on ownership diversity prior to relaxing any rules." United Church of Christ Policy Adviser Cheryl Leanza said she told an aide to Commissioner Jessica Rosenworcel the cross-ownership rule can't be relaxed "without a study to address the likely impact on ownership rates by women and people of color without a significant risk of being reversed on review."