Tech & Telecom Weekly - June 28, 2021

Welcome to the Tech & Telecom Weekly, an e-newsletter keeping you apprised of the latest developments in the telecommunications and high-tech industries.

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FCC Policy

The FCC, Department of Agriculture, and NTIA have signed an Interagency Agreement “to require coordination … for the distribution of funds for broadband deployment” as they administer the various telecommunications subsidy programs under their jurisdictions. The agreement principally requires the sharing of data related to entities that receive funding and the degree to which broadband is available in a given “project area.” It further states that no “transfer of funds” or “commitment of funds” may be inferred from the Agreement. For more information, please contact Stephanie Joyce.

In the Courts

Today the U.S. Supreme Court denied certiorari to the city of Portland in its unsuccessful fight to overturn the FCC’s 2018 Small-Cell Order that, pursuant to 47 U.S.C. § 253, preempts state or local policies and actions that “materially inhibit the buildout of wireless services” in their communities. Excessive fees and cumbersome rights-of-way regulations were among the ills that the Small-Cell Order aimed to reduce. Dozens of cities and the National League of Cities had joined as co-petitioners. City of Portland v. FCC, No. 20-1354. 

In Transunion LLC v. Ramirez, the Supreme Court, in a 5-4 decision, has reinvigorated the “concrete harm” requirement for Article III standing in FCRA cases that it previously adopted in Spokeo, Inc. v. Robins. On appeal of a jury verdict against Transunion awarding more than $60 Million in damages to a class of 8,185 individuals, the high court held that only the 1,853 class members whose flawed credit reports actually were provided to third parties “demonstrated concrete reputational harm.” Justice Kavanaugh, writing for the majority, reasoned that even where a statute creates an immediate right of action, federal courts have a “responsibility to independently decide whether a plaintiff has suffered a concrete harm[.]” In dissent, Justice Thomas pointed to centuries of precedent to assert that so long as a plaintiff seeks to vindicate a right secured to them individually, they have standing. Justice Kagan’s dissent criticized the majority’s “judicial aggrandizement” and posited that every Transunion plaintiff bore the non-speculative risk that their report – falsely stating that the consumer was on a terrorist watch list – would be disseminated and thus should be able to sue. 

For more information, please contact Stephanie Joyce. 

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Legislative Affairs

The House Communications Subcommittee will hold a hearing titled “A Safe Wireless Future: Securing our Networks and Supply Chains” on June 30, 2021, at 10:30am ET. The hearing will be both in-person and virtual. For more information, please contact Stephanie Joyce.

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