The Supreme Court heard argument Monday on whether it should affirm an appellate court ruling that a litigant in a private junk fax lawsuit can't attack validity of an FCC order that could have been challenged under the Hobbs Act when issued. The U.S. solicitor general urged the Supreme Court to affirm (see 1902150058) the appellate court’s order, in PDR Network v. Carlton & Harris Chiropractic, No. 17-1705. PDR claimed a 4th U.S. Circuit Court of Appeals Hobbes Act ruling effectively stripped a district court of jurisdiction to review an FCC "unsolicited advertisement" decision under the Telephone Consumer Protect Act (see 1901090045). Carlton & Harris sued PDR after receiving a fax advertising a digital version of a physician's reference book. The most “startling comment” in the 4th Circuit's opinion in this case is, "We need not harmonize the FCC's rule with the underlying statute,” said Carter Phillips, who argued the case for PDR. “I would have thought, in any ordinary instance of judicial review of administrative agency decision-making, that's a statement that ought to leap out off the page,” he said, according to the official transcript. Justices appeared skeptical of PDR’s arguments. “Isn't it enough that you can seek reconsideration of the FCC determination prior to the application of the order to you?” asked Chief Justice John Roberts. “Presumably, the agency will deny it, but then you'd get judicial review at that point.” PDR could “go to the agency” and say “we don't think we're violating your order,” said Justice Sonia Sotomayor: “'Are we or aren't we?' You could have done that.” In separate TCPA litigation, the 9th Circuit reversed a lower court's summary judgment in favor of defendant student loan guarantor USA Funds. The 9th Circuit ruled Friday a jury could hold the guarantor vicariously liable for alleged TCPA violations by debt collectors it hired, given questions about whether USA ratified the debt collectors' calling practices (docket 17-55373). The court remanded the case to District Judge Janis Sammartino of San Diego for further TCPA proceedings. Judge Dorothy Nelson wrote the opinion, joined by Judge William Fletcher; Judge Jay Bybee dissented, disagreeing whether there was a material issue of fact about ratification.

Intel representatives told the FCC a market-based approach for the C-band is the best course and would get mid-band spectrum in play more quickly for 5G. “Because it is voluntary, it solves the holdout problem, avoids contentious disputes with the incumbents and harnesses competitive market forces to make the many difficult technical and business tradeoffs that must be addressed in this proceeding,” Intel said. “Compared to the alternatives, it will repurpose and assign this spectrum more efficiently and, most importantly, far more quickly.” Intel met Chief Don Stockdale and officials from his Wireless Bureau, the International Bureau and the Office of Economic Analysis, said a filing posted Monday in docket 17-183. Giving up FCC authorizations and moving to a compressed band "will be painful for all involved," which is the FCC should opt for a distribution and scoring model for however the sale is conducted, said small-satellite operators ABS Global, Hispasat and Embratel Star One, in a posting Monday renewing a push for their distribution model (see 1903110059). That would divvy up some of the proceeds among all satellite operators authorized to transmit in the U.S. C band, not just C-Band Alliance members, they said. They said T-Mobile's band-clearing plan runs afoul of the Communications Act with a reverse auction phase of earth station owners bidding against satellite operators when those parties aren't competing licensees. T-Mobile didn't comment. America's Communications Association said the FCC should determine to what extent the C-band can be refarmed before acting. T-Mobile claims 200 MHz is “insufficient to meet the needs of 5G service providers” and “CTIA has intimated that at least 300 MHz is needed for the U.S. to maintain its global leadership,” ACA said. “Without this information, the figures that are being floated in this proceeding, and that are gradually increasing, are shots in the dark, and any decision as to how much spectrum should, or can, be refarmed would lack foundation,” ACA said. The group said the FCC should also look at the effect in rural markets.

The FCC posted the spectrum horizons order, allocating the first bands above 95 GHz for Wi-Fi and other unlicensed use, approved 5-0 March 15 (see 1903150054). A side-by-side comparison found few changes beyond the draft order circulated three weeks earlier. “These frequencies -- long considered to lie at the outermost horizons of usable radio spectrum -- are becoming increasingly well-suited for the development and deployment of new active communications services and applications,” said the order in Friday's Daily Digest. FCC officials said changes were difficult to make because the details had been worked out with NTIA.

The FCC 4-1 fined a carrier $2.32 million for deceptive marketing practices, it ordered Thursday. Long Distance Consolidated Billing allegedly switched consumers’ carriers without authorization and added unauthorized charges -- slamming and cramming. It's a non-facilities-based interexchange carrier. Telemarketers pretended to represent providers “to trick the business or consumer into switching providers,” the agency said. Commissioners adopted the order Tuesday with Mike O'Rielly partly dissenting. “By engaging in slamming, the carrier automatically engaged in cramming," he said. "I am opposed to imposing additional fines for cramming purportedly arising from a slamming transaction." The company didn’t comment.

A District of Columbia privacy proposal by Attorney General Karl Racine (D) would update D.C. data breach law and expand consumer privacy rules, he said Thursday. The proposed bill for the D.C. Council, which shows Chairman Phil Mendelson (D) as sponsor, would broaden the definition of personal information, which now covers Social Security, driver’s license and credit or debit card numbers, to include passport, taxpayer ID and military ID numbers, plus biometric data and health, genetic and health insurance information. It would require companies that handle personal data to have security safeguards, provide two years' free identity theft protection if they expose Social Security or tax ID numbers, and inform consumers of their rights when a data breach occurs. “The District’s current data security law does not adequately protect residents,” Racine said.

FCC Commissioner Brendan Carr's focus on clearing more than 200 MHz of the 3.7-4.2 GHz band "is a clear signal" opposition to the C-Band Alliance band-clearing plan "is gaining momentum," New Street Research's Blair Levin wrote investors Thursday. Carr at WISPAmerica in Cincinnati said the FCC "can do better" than 200 MHz and his focus is on those approaches, hoping for a 2019 order. Levin said Carr's comments will boost rival proposals, such as those by T-Mobile or from cable operators, and pressure the CBA to rework its plan. The analyst said Carr's comments point to "the goal lines for completion" of an order being later than Q2 or early Q3. CBA emailed us that its 200 MHz clearing plan "is centered by what can be delivered in 18 to 36 months from an FCC order, which we believe to be the fastest by a matter of years as compared to any other alternative. We have indicated that as compression technologies improve, we may be able to clear more, but over time [and that] the FCC wants to protect existing customers in this proceeding. ... Given that our satellite signals blanket the U.S. ubiquitously, and cannot be ‘turned off’ in cities, it would be difficult, if not impossible, to deploy a solution that results in cities having more cleared spectrum than suburban and rural areas." Commissioner Mike O'Rielly Wednesday said he would like 400 to 500 MHz to be freed up, but he considers 200 to 300 MHz more realistic (see 1903200009). American Enterprise Institute Visiting Fellow Daniel Lyons blogged Thursday that the advantage of the market-based CBA approach is speed, likely clearing spectrum faster than an incentive auction. He said it's likely a more efficient approach, with buyers and sellers negotiating directly. He said the argument the CBA approach would be a windfall for satellite operators "is somewhat overblown" since they'll bear repacking costs including new satellites, but financial gains for those operators provide incentive to make more spectrum available, which ultimately benefits consumers. CBA told us it was unaware Lyons was writing the piece and didn't compensate him.

The FTC is developing plans to issue a 6(b) study of tech industry data practices, an aide for Sen. John Thune, R-S.D., said Wednesday. Such Section 6(b) authority, agency documents say, lets it conduct “wide-ranging economic studies that do not have a specific law enforcement purpose.” The studies allow the agency to collect internal company information. According to the aide, commission Chairman Joe Simons wrote to Thune: “I agree with you that the FTC’s section 6(b) authority could be used to provide some much needed transparency to consumers about the data practices of large technology companies. We are developing plans to issue 6(b) orders in the technology area.” The agency declined comment.

Challenges to FCC wireless and wireline infrastructure orders will be paused, pending review by a special master, the 9th U.S. Circuit Court of Appeals ruled Wednesday. Challenges by Sprint and 11 others to a September order restricting local fees and reviews of small-cell siting applications were consolidated under Sprint v. FCC, No. 19-70123, said an order (in Pacer) of Judges Richard Tallman and Mary Murguia. The September order case will be assigned to the same merits panel that reviews Portland and American Electric Power Service challenges to an August ruling/order barring local infrastructure moratoriums and revising pole-attachment processes. The latter two were also consolidated under Portland v. FCC, No. 18-72689, said another order (in Pacer) of the two judges. The court referred all the cases to its special master, Appellate Commissioner Peter Shaw, for a case management conference he will schedule. “The special master shall consider any issues he deems appropriate to manage the petitions effectively, including but not limited to the development of a briefing plan for the above-listed twelve petitions,” said the first order. The judges granted in part the FCC’s motion, opposed by localities (see 1903070059), to hold the Sprint case in abeyance. Noting the FCC's request to continue a stay in the Portland case, the second order stayed the now-consolidated case pending the conference. “Proceedings in these consolidated petitions other than the case management conference are stayed pending [that] conference,” said both orders: "Briefing is suspended pending further order of the court following the ... conference." The decisions mean “we’re in abeyance for what I hope will be a short period of time,” emailed local government attorney Ken Fellman. “Given the number of parties, different case filings and complexity of the issues, we’ve thought that a case management conference would be necessary to delineate the process of getting from here to a decision.” Local governments are pleased because the FCC had "asked for an indefinite abeyance," but the court "simply delayed matters until after the scheduling issues can be considered at a case management conference," said Best Best attorney Joseph Van Eaton. "We are hopeful that the process established by the 9th Circuit will result in expedited resolution of this appeal. At the very least, we suspect the FCC will be asked to explain why it has not decided the pending reconsideration petitions." The agency didn’t comment.

The FCC updated rules for fixed TV white spaces devices, in an order approved 5-0 Tuesday and released Wednesday. It said the devices covered are mostly used by wireless ISPs, schools and libraries for wireless backhaul. The new rules require fixed white space devices include a “geo-location capability such as GPS and eliminate the option that permitted the geographic coordinates of a fixed device to be determined by a professional installer.” External geo-location sources by a fixed device are OK “when it is used at a location where its internal geo-location capability does not function, such as deep inside a building.” The agency requires devices to recheck geographic coordinates at least once a day and report the coordinates to the white spaces database. The regulator sought comment on changes sought by NAB in a 2016 NPRM (see 1605060066). It didn't address a request by Microsoft last year seeking other changes (see 1802050031). “We do not intend to prejudge those requests in this item and may consider them in a future notice of proposed rulemaking,” the FCC said. Changes won’t be instantaneous. The agency will permit continued marketing of previously approved devices that don't comply with the new rules until 18 months after the effective date. Wireless ISPs got a change they sought, in an accompanying order on reconsideration. The FCC now will permit white spaces antennas of up to 100 meters in less congested areas, versus the 30-meter limit. “This action will allow for improved wireless broadband service to persons in rural and other underserved areas,” the FCC said. “A 100-meter antenna height above ground level limit will benefit wireless broadband providers and users by permitting antennas to be mounted on towers or other structures at heights sufficient to clear intervening obstacles such as trees and hills that would attenuate the transmitted signal, thereby increasing the range at which the signal can be received.” Requiring "automatic geolocation in white spaces devices will help increase accuracy and protect television viewers from harmful interference,” a NAB spokesperson said. This makes vacant and unlicensed TV channels “more useful for deploying better and more affordable broadband in rural America,” said Michael Calabrese, director of the Wireless Future Program at New America. “The commission rejected efforts by broadcasters to try to deter the use of [TV white spaces] for rural broadband in furtherance of their goal to monetize public airwaves they neither paid for nor actually use.”

Comedian John Oliver's robocalls to FCC members' offices likely are legal, telecom lawyers said. The "pre-recorded message satisfies the first element" of a Telephone Consumer Protection Act standard requiring prior consent, blogged Kelley Drye's Steve Augustino and Jennifer Rodden Wainwright. But TCPA restrictions don't apply to the robocalls because HBO's Last Week Tonight host is calling landline phones (autodialed calls to wireless phones are restricted), and isn't introducing an advertisement or engaged in telemarketing, the attorneys suggested Monday in a post their law firm also emailed Tuesday. "Consent is not required for the calls that Oliver is making, and revocation of consent similarly is not relevant" here, they added. "Oliver rightly observed during his segment that the National Do Not Call Registry only applies to telemarketing calls, so even if the FCC commissioners registered their office phone numbers on the National Do Not Call Registry, Oliver’s calls to them would not be unlawful." Some commissioners also have indicated the calls are legal (see 1903150061). The FCC declined to comment Tuesday on the calls' lawfulness, and HBO didn't comment. At least some of Oliver's calls continue to commissioners' offices every 90 minutes as the TV host said would occur.