Howard Buskirk

T-Mobile challenged the FCC's 3-2 April decision (see 2404290044) fining the carrier for allegedly not safeguarding data on customers' real-time locations. The challenge was made at the U.S. Court of Appeals for the D.C. Circuit. Notices of apparent liability were proposed in 2020 against T-Mobile and other carriers under then-Chairman Ajit Pai, a Republican, but the commission’s two current Republicans, Brendan Carr and Nathan Simington, dissented in April. Carr voted for the NAL in 2020, but raised concerns at the time. “The majority held -- for the first time” that customer proprietary network information (CPNI) “encompasses mobile-device location information that is unrelated to voice calls,” T-Mobile said in challenging the order in docket 24-1224. The carrier was fined more than $91 million, plus $12 million for violations by Sprint, which it subsequently acquired (see 2404290044). The order is “unlawful, arbitrary and capricious, an abuse of discretion, and unconstitutional,” T-Mobile told the court. The location information cited “is not CPNI within the meaning of Section 222(h)(1)(A) [of the Telecommunications Act], as the statutory text, context, and Commission precedent make clear,” T-Mobile said: “At a minimum, the Commission failed to provide fair notice of its novel, expansive statutory and regulatory interpretations -- the Order punishes T-Mobile based on legal requirements that the majority adopted for the first time in this proceeding and retroactively applied to T-Mobile’s past conduct.” T-Mobile said it “adopted numerous safeguards to protect the privacy of its customers’ location data, and it acted promptly and decisively to stop rogue actors from misusing location data for unauthorized purposes.” On Monday, Jacob Lewis, FCC associate general counsel, filed to represent the agency in the case. T-Mobile also filed an appeal on behalf of Sprint in docket 24-1224.

ISPs told the 6th U.S. Circuit Court of Appeals that the U.S. Supreme Court’s recent decision in two cases overturning the Chevron doctrine means the FCC’s net neutrality order must be stayed pending judicial review (see 2407010036). The FCC said Loper Bright Enterprises v. Raimondo and the other case had no implications for its order, which reclassified broadband as a Title II service under the Communications Act.

The FCC received unanimous support from commenters that have filed so far for an NTIA proposal that calls for using geofencing to allow higher equivalent isotropically radiated power limits for cellular vehicle-to-everything on-board units in the 5.9 GHz band (see 2406100032). Comments were posted on Friday and Monday (docket 19-138).

Officials with the 12 GHz for 5G Coalition remain hopeful that FCC action in coming months will allow use of the lower 12 GHz band for fixed-wireless deployments, they said in interviews. In addition, should the FCC act soon, the band could still play a part in some state proposals under the broadband equity, access and deployment (BEAD) program, the officials said. The coalition had hoped for action early in 2024 (see 2312270045).

The FCC Wireline Bureau gave carriers part of the relief they sought on rules addressing SIM swapping and port-out fraud, delaying Monday's compliance deadline. The reprieve, though, isn't as long as CTIA, NCTA and the Competitive Carriers Association wanted (see 2406270028). The bureau found that delay of the rules until March 10, as the groups asked, “would not serve the public interest,” a Friday order said. But the bureau said the requirement won’t kick in until OMB completes its review of the information collection requirements in the rules and the FCC publishes a notice in the Federal Register announcing the compliance date. “This will effectively result in a single synchronized timeframe,” the order said. The review is expected to be completed no earlier than November, the order said. The FCC “gave the industry a half a loaf, which is better than giving them the whole loaf,” Margot Saunders, senior counsel at the National Consumer Law Center, told us. Saunders said “it’s too bad” the requirements aren’t already in place. “SIM swap and port out frauds cause devastating losses to consumers, especially to low-income consumers who are using prepaid phones, which are more vulnerable,” she said: Consumers often don’t “have the means to launch expensive litigation to recoup their funds. The new regulations impose relatively modest requirements -- which do not seem to be overly complex, or need radical new systems to be developed.” The commission "is not unaware of the complexities of implementing the requirements,” but “we do not find the complexities outlined by Petitioners persuasive to overcome the Commission’s stated concerns regarding the urgency of addressing these types of pernicious fraudulent schemes,” the order said.

The three major U.S. wireless carriers, AT&T, T-Mobile and Verizon, told the FCC it’s too early for rules on using supplemental coverage from space (SCS) to improve calling to 911. Their message was contained in reply comments posted through Tuesday in docket 23-65. The FCC's SCS framework order approved in March (see 2403140050) included a Further NPRM asking about 911 and radio astronomy issues. Specifically, the FNPRM looks at whether the FCC should mandate location-based routing requirements for SCS emergency communications.

The U.S. Supreme Court on Monday issued another decision concerning regulatory law, Corner Post v. Board of Governors, which is expected to also add to the number of challenges against regulatory agencies filed in court. But the effect for the FCC is expected to be zero, unlike last week’s decision in cases challenging the Chevron doctrine (see 2406280043), because the Communications Act, not the six-year statute of limitations in the Administrative Procedure Act, governs appeals of FCC decisions. In Corner Post, SCOTUS, in a 6-3 decision along ideological lines, revived a North Dakota convenience store's challenge of a Federal Reserve regulation covering debit card "swipe fees." Businesses pay banks these fees when customers use debit cards to make purchases. Corner Post argued that it shouldn’t be bound by the six-year statute of limitations to challenge a 2011 regulation because it opened for business in 2018. SCOTUS held that an APA claim doesn’t accrue for purposes of the six-year statute of limitations “until the plaintiff is injured by final agency action.” The administration, representing the Federal Reserve Board of Governors, had argued that adopting Corner Post's legal position "would substantially expand the class of potential challengers" to government regulations and "increase the burdens on agencies and courts." Industry lawyers noted that under Section 402(a) of the Communications Act, petitions for review of FCC orders, except those involving licenses, must be filed within 60 days. The deadline for appealing license decisions in Section 402(b) is 30 days. The APA deadline has never applied, lawyers said.

Industry lawyers continue to assess the potentially seismic implications of Loper Bright Enterprises v. Raimondo and the other Chevron case decided last week (see 2406280043). Yet the after-effects are being seen already. The 6th U.S. Circuit Court of Appeals on Friday directed parties in the net neutrality challenge to file not later than July 8 supplemental briefing material addressing the effect of the Chevron decision “on our analysis” of a motion to stay the order (see 2406280060).

The U.S. Supreme Court’s conservative majority surprised no one Friday, issuing a decision decided on ideological lines that overrules the Chevron doctrine. Chevron gave agencies like the FCC and FTC deference in interpreting laws that Congress approved. On the penultimate day of its term, the court released a decision that wraps together Loper Bright Enterprises v. Raimondo and Relentless v. Commerce. Both cases concern fishing regulations but were used as a vehicle for overturning Chevron.

The FCC’s rechartered Communications Security, Reliability and Interoperability Council on Friday held the first meeting of its cycle at FCC headquarters. The meeting was organizational and offered little substance. CSRIC will focus on AI and 6G with three working groups (see 2406100047). And it will consider “how can we harness AI for good … while also preventing and mitigating harms associated with the use of AI,” Public Safety Bureau Chief Debra Jordan said. Another focus is next-generation 911, Jordan said. “In the future, consumers will have an increasingly wide range of wireless devices that can transmit 911 calls over a variety of networks -- you will examine how to best ensure people can call for help across these expanding platforms and options and in the next-generation 911 environment,” she said. Moreover, CSRIC will develop a plan “for more secure and reliable 6G networks and services that minimize risks,” she said. It feels like 5G is just getting started, “but we want to be forward-looking,” Jordan added. Sanford Williams, an aide to FCC Chairwoman Jessica Rosenworcel, said, AI “has swiftly transitioned from a futuristic concept to an integral part of our daily lives, from voice assistance … to advanced machine learning algorithms predicting consumer behavior.” Williams added, “AI is literally everywhere.” He played for CSRIC members the deepfake President Joe Biden political robocall that was featured during the FCC’s Consumer Advisory Committee Wednesday (see 2406260041). Williams noted that Biden’s executive order on AI (see 2310300056) delegated several tasks to the FCC, including examining the potential for AI “to improve spectrum management, increase the efficiency of non-Federal spectrum usage and expand opportunities for the sharing of non-Federal spectrum.” The order instructed the FCC to consider use of AI for improving network security, resiliency, and interoperability through next-generation technologies including self-healing networks, 6G, and open radio access networks, Williams said. FCC staff need help from industry experts in all CSRIC's areas of study, he said. In brief remarks, Rosenworcel thanked members for agreeing to serve on CSRIC. "It will be hard to surpass the last CSRIC’s work on 5G network security and mitigating the vulnerabilities of software in cloud services, but I think you’re up to the challenge,” Rosenworcel said. CSRIC co-Chair Billy Bob Brown from the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency said the world has never faced greater cyber risks. “I believe we face the greatest challenge of our generation -- an existential challenge -- but I also have hope.” CSRIC is expected to next meet Sept. 27.