Court Actions
City of Chicago Loses Bid to Collect Revenues from Comcast
The Supreme Court of Illinois has ruled unanimously against the City of Chicago in its efforts to collect revenues related to the franchise fee from Comcast’s cable modem service. The decision, handed down November 20, 2008, relied heavily on the FCC’s 2002 interpretation excluding cable modem service from inclusion in a cable operator’s 5% gross revenues for franchise fee purposes (along with its definition of cable modem service as an interstate information service), along with several Federal district court decisions. The full text of the decision is available here.
US Court of Appeals Denies Petition for Rehearing En Banc
Local Governments and Media Organizations Challenge Court’s Ruling
Alexandria, VA – The National Association of Telecommunications
Officers and Advisors (NATOA) joined by its partners, the Alliance for
Community Media (ACM) and the Alliance for Communications Democracy (ACD) today
filed a Petition for Rehearing En Banc before the United States Court of
Appeals for the Sixth Circuit on its decision that upheld the FCC’s rules
adopted in the First Report and Order in
the Video Franchise Docket 05-311. “We
have taken this action because our review of the panel’s decision indicates
that it conflicts with Supreme Court and circuit precedent in statutory construction
principles, with respect to federal agencies substituting judgment for state
and local elected officials, and that it failed to properly apply the arbitrary
and capricious standard for reviewing evidence supporting agency
decision-making.”
“In other words, the court ignored its own prior decisions, those of other circuits affected by its decision and those of the United States Supreme Court. Clearly, the full court needs to consider this case, otherwise we will have a federal agency exercising an entirely free hand where Congress gave them no such authority, but in fact withheld that very power. The concept of our federalist form of government, with reliance on the separation of power and respect for our concurrent forms of jurisdiction should not be undermined by such a narrow and ill-conceived approach,” stated Libby Beaty, NATOA’s Executive Director. “As we stated when this decision came out, we are taking those steps we feel are necessary to ensure that the American consumer is protected and the rights of our communities and in our communities are not harmed.”
NATOA has engaged the services of Lani Williams at the Local Government Lawyers Roundtable for the preparation of the Petition and for future court action.
Download a copy of the Press Release Here
US Court of Appeals Upholds FCC Franchise Order
In response to the Wall Street Journal, NATOA Executive Director Libby Beaty stated “The federal government should not be dictating what’s going on in our local communities.” See WSJ June 27, 2008 - Appeals Court Upholds FCC Franchise Rule
Sprint v. San Diego - NATOA joins Amici in support of the City of San Diego in 253 ROW and 332 Siting Case
NATOA continues in its representation in this case, which has three primary issues: the intersection of Section 253 and 332; whether the standard for Section 253(a) as applied by the Ninth Circuit in the Auburn case is the correct standard (assuming Section 253 applies); and whether Section 253 is violated when the court believes that an ordinance has what the court believes is too much discretion in determining whether to grant or deny an application even though it could be done consistent with current law. The crux is whether, by simple virtue that a something could be found inconsistent with the law in the future, it is automatically so without evidence in support of the showing.