Adam Bender

CTIA stood alone fighting to keep revenue-based contribution for California USF, in comments last week at the California Public Utilities Commission. CPUC members plan to vote Oct. 6 on a proposed decision to assess state public purpose program (PPP) fees based on a carrier’s number of access lines (see 2209060048). The wireless industry continued to staunchly oppose the change, but wireline and cable companies instead sought more implementation time and wording changes.

Florida asked the U.S. Supreme Court to reverse an 11th U.S. Circuit Court of Appeals decision that a state law’s social moderation limits are likely unconstitutional. The state filed a petition for certiorari Wednesday. Tech associations that challenged the Florida law supported SCOTUS review. Since the 5th Circuit upheld a Texas social media law last week, legal observers expect the Supreme Court to hear a case on the constitutionality of state social media laws to resolve the circuit split (see 2209200008).

An Arkansas law doesn't clearly give municipalities the right to sue for franchise fees from Netflix and Hulu, a federal appeals judge suggested Tuesday. At oral argument teleconferenced Tuesday from St. Louis, 8th U.S. Circuit Court of Appeals Judge David Stras suggested Ashdown and other Arkansas localities might have to ask the legislature to update the Arkansas Video Service Act (VSA) to address their concerns that streaming video companies don’t pay franchise fees.

Shelve Minnesota’s LTD Broadband review until the FCC reverses its rejection of the company’s long-form application for Rural Digital Opportunity Fund (RDOF) support, urged the company’s outside counsel Andy Carlson of the Taft firm at a teleconferenced prehearing conference Tuesday. The Minnesota Public Utilities Commission is considering whether to revoke LTD Broadband’s ETC status while the company challenges the FCC rejection (see 2208240037). Minnesota Assistant Attorney General Kristin Berkland disagreed that the state commission should pause. FCC and PUC proceedings are "interrelated, but they are not interdependent,” with the state agency able to decide ETC designation regardless what the FCC is doing, she said. Carlson said LTD’s actual buildout will be proof it's qualified to deploy broadband. "That's great,” said Berkland, “but ideally you want to know in advance whether a company can do those things that it says it can do because it is incredibly difficult to claw back funding from a company that overrepresents its ability.” Minnesota PUC Administrative Law Judge Jim LaFave said he will decide later how to proceed. In South Dakota, the state telecom association urged the Public Utility Commission Sept. 2 to deny LTD’s request to suspend a proceeding to rehear its denied ETC application. The PUC should instead close docket TC21-001, it said. That request remains pending.

Businesses will continue to seek a way forward on a concerning, soon-to-expire exemption in California's privacy law for employee and business-to-business (B2B) data, a California Chamber of Commerce (CalChamber) official told us Friday. Many privacy lawyers are warning businesses about the carve-out sunsetting at year-end due to the legislature failing to pass an extension. Starting Jan. 1, the California Consumer Protection Act (CCPA) is “really no longer just a consumer law,” said Sheppard Mullin’s Julia Kadish in an interview.

A federal court disagreed with constitutional arguments to dismiss a class-action lawsuit brought under the Florida Telephone Solicitation Act. In an order Thursday in Borges v. SmileDirectClub (case 1:21-cv-23011), the U.S. District Court in Southern Florida denied a motion to dismiss by the defendant, which argued that FTSA violated the First Amendment as a content-based speech restriction and defied the 14th Amendment’s due process clause because the law fails to define what is an “automated system for the selection or dialing of telephone numbers.” Judge Melissa Damian disagreed. The state law isn’t subject to strict scrutiny under the First Amendment because it regulates only commercial speech, said the judge, citing May’s decision by the 11th U.S. Circuit Appeals Court on a Florida social media law (see 2205230049). FTSA survives intermediate scrutiny because the commercial speech at issue isn’t misleading or related to unlawful activity, and because the law is narrowly tailored and serves a substantial government interest of protecting consumer privacy, Damian said. The court isn’t persuaded that FTSA is unconstitutionally vague, the judge said. “The Court finds that the absence of a definition of ‘automated system’ in Section 8(a) of the FTSA does not render that provision unconstitutionally vague when, as here, Defendant’s alleged conduct is clearly encompassed by the statute.” SmileDirectClub should answer the complaint by Sept. 30, Damian said. A tsunami of telemarketing lawsuits is expected as more states like Florida add restrictions beyond what’s in the federal Telephone Consumer Protection Act (see 2206100049).

The Pennsylvania Public Utility Commission voted 3-0 to seek comment on a proposed settlement to resolve an Enforcement Bureau informal investigation of Lumen’s CenturyLink. At a livestreamed Thursday meeting, commissioners unanimously supported the proposed order on a pact between the bureau and the company in docket M-2022-3028754. The bureau opened the probe in response to information from state Rep. Perry Stambaugh (R) and Sens. Judy Ward (R) and John DiSanto (R), “who had received various email complaints relating to service outages and alleged unreliable service by CenturyLink customers,” said a July 18 joint petition to approve the settlement. Hurricane Ida flooding damaged CenturyLink facilities in August 2021, it said. Under the proposed settlement, CenturyLink agreed to pay $45,000 and to complete remedial measures including a quality assurance program and required public service announcements to educate the public on how to report damaged facilities. Comments will be due 25 days after the order's publication in the Pennsylvania Bulletin, said the PUC.

Washington, D.C.’s, 911 center did little in response to recommendations in an October audit that found the Office of Unified Communications (OUC) failed in many months to meet national standards for getting timely help to callers, said a follow-up report Friday. Of 31 recommendations, OUC completed one, made “minimal progress” on 24, and “no observed progress” on two, said the Office of D.C. Auditor (ODCA): OUC still faces issues identified in the original audit, “including call-taking confusion, glitches in dispatch operations, and insufficient management follow-up on after-action reviews.”

Chairperson Rebecca Cameron Valcq condemned political attacks against the Wisconsin Public Service Commission and Gov. Tony Evers (D) after a state auditor raised concerns with how the state handled broadband grants funded by federal dollars. Wisconsin Republicans said Wednesday that an alleged failure “to adequately and accurately track the millions of dollars they allocated for broadband service” shows Evers’ "ineptitude as a leader of our state.” Valcq responded in a Thursday statement, “It’s unfortunate that some would choose to take political potshots in this election season when we should be working together to get everyone connected with this very successful and transparent program.” Evers didn’t comment. The Wisconsin Legislative Audit Bureau said in a Sept. 1 report the agency “should improve its administration of broadband expansion grant programs, including by establishing comprehensive written program policies and improving how it reviews and awards grants, reimburses telecommunication providers, and oversees the programs.” The PSC awarded $5.4 million and later reimbursed $4.9 million to telecom providers using Cares Act funding, but the agency didn’t establish written program policies for administering funds and "almost all of the documents that providers submitted in support of their reimbursement requests did not indicate the amounts they had actually paid to construct the projects,” said the auditor: The PSC also didn’t write program rules for $99.9 million awarded under the American Rescue Plan Act “and did not consistently adhere to its grant application instructions when deciding which projects to fund.” Valcq said Thursday that after reviewing 400 documents, “the audit did not find any errors, unallowable expenses, or items purchased outside of the performance period.” It “recognized the robust internal controls our programs have in place to assess and prevent any misuse of funds,” she said. “All the projects that received reimbursement funding were completed as expected and agreed to.” In an Aug. 25 letter attached to the report, Valcq disagreed that reimbursement requests submitted by grant recipients didn’t show actual costs. “All reimbursed amounts were properly supported, per the grant agreement and federal guidance.” The PSC will better document its monitoring activities and establish written policies and report by Nov. 15 to the Joint Legislative Audit Committee on efforts to address audit recommendations, she said.

California’s public advocate raised concerns about communications resiliency plans submitted by big wireline and cable companies to the California Public Utilities Commission. AT&T, Comcast and Cox resiliency reports omitted important details regarding compliance with the CPUC’s 72-hour backup power requirement, the agency’s independent Public Advocates Office (PAO) said in protest filings filed Wednesday at the CPUC. Require the three providers to file supplemental information, including on storage locations of mobile generators, to compliance letters that were due last month, it said.