AT&T says the FCC should vacate a recent forfeiture order against the company on grounds that it’s arbitrary, capricious and an abuse of discretion within the meaning of the Administrative Procedure Act, said its petition for review Thursday (docket 24-60223) in the 5th U.S. Circuit Court of Appeals. In the April 29 order, the FCC imposed a $57.3 million penalty for AT&T’s violations of Section 222 of the Communications Act and commission regulations governing treatment of customer proprietary network information (CPNI). It found that AT&T failed to use reasonable measures for discovering and protecting against attempts to gain unauthorized access to customer location information. However, AT&T said as a “threshold matter,” the location data isn’t CPNI within the meaning of Section 222. Accordingly, the company's petition for review said the FCC lacked statutory authority to issue the order. “At a minimum,” by first announcing its “novel and expansive interpretation” of Section 222 in its enforcement proceeding and “retroactively punishing” the carrier for conduct preceding that announcement, the FCC “failed to provide the fair notice that AT&T was due,” it said. Even assuming otherwise, the agency’s finding that AT&T acted unreasonably in discovering and protecting against unauthorized access to customers’ location data is arbitrary and capricious, it added. The imposition of a $57.3 million penalty based on the existence of 84 distinct location-based-services providers, despite zero breaches by those providers, “defies law and logic,” it said. The FCC “has long lauded the valuable and sometimes life-saving benefits of location-based services, the growth of which AT&T has facilitated by implementing industry-leading data security safeguards,” the petition said. Yet the order “takes the nonsensical position that AT&T should have abruptly cut off access to customer location data in response to a news report of a single provider’s misuse,” of which the FCC had been aware for a year, “and despite the absence of any evidence that AT&T customers’ information was subject to unlawful use,” it said. The agency’s enforcement regime also “runs afoul” of the Constitution, the petition argued. Rather than grant a hearing to an alleged violator, it may elect to issue a notice of apparent liability, pass judgment on its own proposed liability finding and penalty, and then demand payment as a prerequisite to an appeal, the petition said: “That regime violates due process, Article III, the Seventh Amendment, and the nondelegation doctrine.”

The FCC Enforcement Bureau classified a group of bad actors as a consumer communications information services threat (C-CIST) for "persistently facilitating robocall campaigns, aimed at defrauding and harming consumers," a news release Monday said (see 2308010075). In an enforcement advisory, the bureau classified Royal Tiger as a C-CIST for "impersonating government agencies, banks, and utilities." The entity, which included a group of individuals and entities based in India, the U.K., the United Arab Emirates and the U.S., received FCC warnings beginning in 2021. The first of its kind classification will allow the bureau to "formally name threat actors that are repeatedly using U.S. communications networks to perpetuate the most harmful, illegal schemes against consumers." It will also give industry stakeholders information to enhance their know-your-customer and know-your-upstream-provider processes.

Expect that fixed wireless access will continue winning broadband subscribers from cable operators in 2024, Chetan Sharma Consulting wrote last week in its Q1 mobile market update. FWA has "completely decimated" cable broadband net additions during the past two years, though mobile "is providing some respite" to cable giants, it said. The report noted cable's mobile sub base exceeded 15 million. Comcast and Charter Communications are the de facto top tier-two operators, it said. The U.S. wireless market has been slowly cooling from its 2021 historic high, with slower growth. Despite that, operators had another $50 billion service revenue in Q1, the report said. The revenue growth and net adds of the past five years, and especially since 5G's launch, have reversed trends of prior years, it said. "This is the best set of 3 years the industry has had in 16 years."

FCC Commissioner Brendan Carr's support of SpaceX raises doubts about whether the Ukrainian Congress Committee of America can expect the commission to treat its petition fairly, the UCCA said Thursday. The group asked the agency to yank SpaceX's licenses in light of allegations that the company allows Russia to use its Starlink satellite network to fight in Ukraine (see 2404240019). Carr last month called the UCCA filing "full of sweeping and unmoored allegations" and meritless. It was "part of a clear and repeating pattern of regulatory harassment that accelerated the moment Elon Musk stood up for free speech," he added. Pointing to Ukrainians in Russia-occupied areas enduring censorship and media control, UCCA said in its new filing that Carr was "culturally insensitive" and there was no proof the group was "some shadowy conspiracy seeking to punish Musk for his stand on free speech." Moreover, UCCA called Carr's statement "highly prejudicial" and asked for an apology. Carr's office didn't comment.

The FCC’s digital discrimination broadband order “is illegal on at least three grounds,” the Pacific Legal Foundation and the Washington Legal Foundation said in an 8th U.S. Circuit Appeals Court amicus brief Tuesday (docket 24-1179). The brief supports the 20 industry petitioners that seek to vacate the order as unlawful (see 2404230032). When Congress grants lawmaking authority to a federal agency, it must lay down by legislative act an intelligible principle to which the agency can conform, according to the brief. Section 60506 of the Infrastructure Investment and Jobs Act directs the FCC to adopt rules that facilitate equal access to broadband, including by preventing digital discrimination of access based on income level, race, ethnicity, color, religion or national origin, it said. The industry petitioners “persuasively explain” that Section 60506's language doesn’t permit the FCC to implement disparate impact liability, it said. But if it did, then that language violates the nondelegation doctrine by failing to provide an intelligible principle governing such liability, it said. “Virtually any action that a regulated entity can take will have a disparate impact along one or more dimensions of income level, race, ethnicity, color, or religion,” said the brief. That’s especially true because of the inclusion of income level, “which means that any decision by a covered entity lowering or raising prices will have a disparate impact based on income and thus come within the FCC’s enforcement authority,” it said. The authority to promulgate disparate impact rules “is a major question to which Congress is required to speak clearly,” it said. Because Congress didn’t speak “clearly to this particular question” in the statute, the FCC’s order is “invalid,” it said. The order also requires covered entities to “treat people differently based on race, in violation of the constitutional guarantee of equal protection,” it said.

The FCC released the final text of an order restoring net neutrality and reclassifying broadband internet access service as a Communications Act Title II telecom service Tuesday. Commissioners approved the item during their April open meeting in a 3-2 vote. An initial comparison between the final text and the draft shows several changes, including "no rate regulation, no tariffing, no unbundling of last-mile facilities, and no cost accounting rules" as part of the Title II reclassification (see 2404250004). The order also clarified that "we have not determined that regulation of zero-rating and interconnection is detrimental, leaving room for states to experiment and explore their own approaches within the bounds of our overarching federal framework." The FCC added to the state preemption section that “the mere existence of a state affordability program is not rate regulation.” The commission won’t “address any particular program here,” it said. “Nevertheless, we find that states have a critical role to play in promoting broadband affordability and ensuring connectivity for low-income consumers.” The 2nd U.S. Circuit Court of Appeals upheld New York state’s affordable broadband law one day after the FCC adopted the Title II decision (see 2404260051).

The FCC's ongoing, contested L-band regulatory proceeding is the proper place for addressing Ligado's concerns regarding its use of the spectrum, especially as the FCC could provide Ligado with adequate relief, DOJ told the U.S. Court of Federal Claims Monday. In a docket in support of the defendant U.S. government's motion to dismiss, Justice said FCC licenses aren't property for purposes of the takings clause, and Ligado hasn't pleaded an authorized taking of its license anyway. DOJ said Ligado's "grab-bag of takings theories" is rife with deficiencies. Ligado is alleging its L-band rights, worth tens of billions, were rendered valueless by U.S. taking of Ligado's property (see 2310130003). The U.S. is seeking dismissal (see 2401260003). DOJ on Monday said that Ligado is ignoring that the FCC's 2020 Ligado order faces eight reconsideration petitions that are pending. It said Ligado is asking the federal court to usurp FCC decision-making and the judicial review process "by depriving the FCC of the opportunity to adjudicate any takings claims and by awarding Ligado billions in compensation for the alleged taking of supposed property -- the modified license -- that the FCC or court of appeals may later abrogate."

The expiration of FCC auction authority was a problem that could have been avoided, House Communications ranking member Doris Matsui, D-Calif., said during CTIA’s 5G Summit Monday (see 2405060051). Congress should strike a deal now that restores auction authority, she said. “With a hamstrung FCC, we're going to be limited in what we can achieve,” Matsui said. “I don't think we can afford to wait any longer.” The U.S. is at a “crossroads,” Matsui said: “Networks are converging, consumer demand is skyrocketing, and global competition is heating up. In short, the stakes couldn't be higher.” The lapse of auction authority more than a year ago was “an avoidable failure,” she said. Matsui called for “a more nimble and predictable spectrum governance regime” and for flexibility from government and industry. “Vital federal missions cannot be jeopardized -- we all agree on that -- but uncompromising rigidity in defining the tools needed for those missions can result in federal paralysis,” she said. The government’s study of the lower 3 GHz band, the national spectrum strategy's requirement, must be “driven by engineering and science” and the Commerce Committee will make sure that happens, Matsui said. In addition, she stressed the importance of Congress funding an extension of the affordability connectivity program (see 2405020072). Despite all the money spent on deploying broadband, without "affordability we can't have the connectivity we need,” she said. For House Communications Subcommittee Chair Bob Latta, R-Ohio, the challenge of crafting legislation on 5G issues and the future of communications is avoiding anything that slows progress. “A lot of times when I talk to the industry, they're way past us,” Latta said. “The last thing we want to do is pass legislation where [we’re] looking in the rearview mirror,” he said. Latta said he keeps an open door and wants industry input. “You got ideas, suggestions, you've got problems, let us know what they are,” he said. Latta remains concerned about the broadband equity, access and deployment program and other spending initiatives. “The federal government should not be out there picking winners and losers,” he said. In addition, Latta is concerned about overbuilding current networks. He said fellow lawmakers find it difficult "to believe and understand that we have over 130 different broadband programs spread across 15 departments and agencies … administering billions of dollars.”

Indian Peak Properties seeks to vacate the FCC’s March 7 order denying its petitions for declaratory ruling, said its petition for review Monday (docket 24-1108) in U.S. Appeals Court for the D.C. Circuit. Indian Peak's petitions had sought a federal preemption under the commission’s over-the-air reception devices (OTARDs) rule of a decision by Rancho Palos Verdes, California, to revoke, under local ordinances, the company’s conditional use permit for the deployment of rooftop antennas on a local property. The FCC’s order denying Indian Peaks that relief was premised on a new “human presence” rule for OTARDs, the petition said. That means FCC staff found that Indian Peak failed to plead facts sufficient to establish a regular human presence at the property where the antennas were deployed. But such a “substantive rule” under the Administrative Procedure Act requires a notice-and-comment rulemaking to be legal and effective, said Indian Peak's petition. But “no notice was given, and the public was afforded no opportunity to comment on the new rule,” it said. Instead, the order announced this rule when it denied Indian Peak’s application for review before the commission, it said. The order also upholds FCC staff’s refusal to declare a proceeding, and hold in abeyance state court litigation, it said, The order thus “upholds staff’s violations of FCC rules of procedure,” it said. With its appeal, Indian Peak seeks reversal of these “arbitrary and capricious agency actions that are contrary to law,” and remand to the FCC “for treatment not inconsistent” with the D.C. Circuit’s opinion, it said. On remand and with the FCC’s grant of Indian Peak’s petitions, the local zoning ordinance would be preempted, and the company would be able to replace the disputed antennas on the rooftop of the property, it said.

Worldwide spending on telecom and pay-TV services reached $1.5 trillion in 2023, up 2.1% over 2022, but slower growth is expected this year, according to the IDC Worldwide Semiannual Telecom Services Tracker. IDC projected an increase of 1.4% in 2024. “The progress of the global market slowed during the latter half of 2023,” IDC said: “This deceleration primarily resulted from slower-than-anticipated progress in the Americas, where a combination of sluggish economic growth, relatively high inflation, and saturated markets created an unfavorable environment for market development.” Growth was stronger in Europe, the Middle East and Africa, where operators “were allowed by the regulators to increase their tariffs in line with inflation using a Consumer Price Index model,” the report said.