Qualcomm is likely to still face multiple tough legal challenges to the company’s licensing of its patents for baseband processors used in cellphones and other products, even if a new forthcoming Republican majority FTC chooses to reverse course on its antitrust complaint, said industry and public interest lawyers in interviews. The FTC claimed in a complaint filed this month that Qualcomm “engaged in exclusionary conduct that taxes its competitors' baseband processor sales, reduces competitors' ability and incentive to innovate, and raises prices paid by consumers for cell phones and tablets” (see 1701170065). Apple filed a lawsuit last Monday seeking $1 billion in damages on claims Qualcomm overcharged the smartphone manufacturer “billions of dollars” for patent licenses (see 1701230067).
Major Questions Doctrine
Even before the FCC released its net neutrality rules on March 12, 2015, ISP interests signaled they would take the agency to court. The likes of CTIA and NCTA predicted lawsuits, as reported in Part I of this Special Report (see 1609150017). Even FCC officials predicted such suits -- accurately, as it turned out. This Part II focuses on how litigation came to pass. Part III reports how the commission won an initial court case (see 1610130014).
The U.S. Court of Appeals for the D.C. Circuit surprised many on both sides of the fight over net neutrality rules and broadband reclassification when it upheld the FCC across the board. After Dec. 4, 2015, oral argument on industry challenges to the 2015 rules (see Part III of this Special Report, 1610130014), the D.C. Circuit issued its decision June 14. That ruling was the subject of two Communications Daily Bulletins that day (see 1606140010 and 1606140012) and many more later stories. This final Part IV of the net neutrality Special Report focuses on the court ruling and continuing challenges.
FCC critics face an uphill battle to convince a federal court to rehear and overturn a ruling upholding the FCC's net neutrality and broadband reclassification order, some knowledgeable sources told us Thursday. Various parties who originally challenged the order are expected to file petitions Friday for rehearing the 2-1 decision at the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC, No. 15-1063), they said. Even commission critics say the odds are against the D.C. Circuit granting rehearing, but some suggested the appellate court proceeding might improve the prospects for Supreme Court review, including on the question of Chevron deference to the agency.
Observers see the 2016 Republican Party platform generally aligning with traditional Republican telecom positions, despite inclusion of a line saying ISPs shouldn't pick winners or losers. Delegates largely preserved the platform rough draft circulating among Republican National Convention officials more than a week ago (see 1607110057). The 66-page final document evolved markedly in two instances, based on the version adopted and released for the first time Monday at the GOP convention in Cleveland. Presumptive GOP presidential nominee Donald Trump hasn't released a telecom agenda, unlike presumptive Democratic nominee Hillary Clinton.
It appears all but certain industry will appeal the U.S. Court of Appeals for the D.C. Circuit’s decision Tuesday upholding the FCC 2015 net neutrality rules (see 1606140023). Less certain is whether the Supreme Court will take the case. A complicating factor is that four of the remaining eight justices would have to agree to hear the case, and, with the death of Justice Antonin Scalia, that will be more difficult until his slot is filled, court watchers said in interviews Tuesday.
It's uncertain what factors Oracle will base its appeal of a San Francisco federal jury's ruling Thursday in favor of Google in the second Oracle v. Google trial, but Oracle has several options, IP lawyers said in interviews. The U.S. District Court jury said Google's use of the coding and names contained in Oracle's Java application programming interface (API) technology in its Android mobile operating system qualifies as a transformative use under the fair use doctrine. Oracle vowed to appeal the verdict (see 1605260067). The tech sector hailed the federal jury's verdict as an important win for fair use.
A jury in U.S. District Court in San Francisco found in favor of Google Thursday in the second trial related to Oracle’s software copyright infringement lawsuit against the company. The jury said Google’s use of the coding and names contained in Oracle’s Java application programming interface (API) technology in its Android mobile operating system qualifies under the fair use doctrine. Google faced up to $9.3 billion in Oracle-proposed damages. The U.S. tech industry was closely watching the second Oracle v. Google trial, given its major implications for the scope of fair use and the financial implications for the U.S. software market (see 1605090048). The jury’s verdict is "a win for the Android ecosystem, for the Java programming community, and for software developers who rely on open and free programming languages to build innovative consumer products,” Google said in a statement. Oracle plans to appeal the jury’s verdict because the company believes “Google developed Android by illegally copying core Java technology to rush into the mobile device market,” Oracle General Counsel Dorian Daley said in a statement. “Oracle brought this lawsuit to put a stop to Google’s illegal behavior.” The U.S. Court of Appeals for the Federal Circuit remanded the fair use question in Oracle v. Google to the San Francisco district court in 2014, also saying Oracle’s APIs are copyrightable (see 1405120040). The Supreme Court declined last year to grant Google’s petition for a writ of certiorari on the Federal Circuit’s API copyright ruling (see 1506290062).
With the European Commission reportedly preparing to nix UK Three's buying O2, questions are being raised whether the carriers will pre-emptively withdraw their proposal, and whether cross-border tie-ins are the way forward. It would be yet another deal that European authorities effectively quashed amid heightened scrutiny on how telecom mergers and acquisitions hurt customers by raising prices (see 1508030002). The Competition Directorate has signaled that mobile consolidation in the domestic markets isn't welcome, telecom consultant Innocenzo Genna blogged Wednesday.
Several Supreme Court justices appeared to agree that no single factor for determining copyright fee-shifting cases as set in Fogerty v. Fantasy should outweigh other factors, during oral argument Monday on its review of Kirtsaeng v. John Wiley & Sons. Two supporters of Kirtsaeng who attended the argument told us they are unsure how that position will translate into a court ruling. Thai citizen Supap Kirtsaeng sought a review of the 2nd U.S. Circuit Court of Appeals' 2015 ruling that Kirtsaeng wasn’t entitled to receive attorney’s fees from textbook company Wiley after winning a 2013 Supreme Court case that extended the scope of the first-sale doctrine (see 1601190071).