Court case

Is the Trump administration's re-killing of net neutrality a big deal?

The Federal Communications Commission has already repealed net neutrality, but the Trump administration can't leave it there. It also wants the Supreme Court to remove a ruling that upheld the controversial Obama-era rules. Is this a big deal? It depends on who you ask. While the request is somewhat unusual, not many cases upholding government regulation are followed by a repeal of that regulation, some legal experts say remanding the decision is just a bit of legal housecleaning. But net neutrality supporters disagree.

Internet sales tax gives e-commerce companies a stake in local government

As our economy becomes increasingly digitized, more transactions are moving online and outside of local tax jurisdictions, costing states billions in lost sales tax revenue. The recent Supreme Court decision in South Dakota v. Wayfair has opened the door for states to collect sales tax on online purchases made at out-of-state businesses. Applying state taxes on interstate commerce could not only recover lost revenues, but also make national e-commerce companies more invested in state government.

DOJ Says Judge Ignored ‘Economics, Common Sense’ in Allowing AT&T-Time Warner Deal (Updated)

The Justice Department argued that US District Judge Richard Leon ignored “fundamental principles of economics and common sense” when he allowed AT&T to acquire Time Warner. The department’s appellate brief, filed with the US Court of Appeals for the District of Columbia Circuit, argued Judge Leon’s ruling was “clearly erroneous in light of the evidence presented at trial.” The government brief argued Judge Leon’s contrary conclusion came about because he “discarded the economics of bargaining” and failed to apply “the foundational principle” that corporations will aim to maximize their

DOJ and FCC request Supreme Court vacate 2016 net neutrality ruling

The Department of Justice and the Federal Communications Commission requested that the Supreme Court vacate a 2016 appeals court decision upholding net neutrality rules adopted by the FCC in 2015. If the court decides to grant the motion, the previous decision to support the rules would be removed, clearing the path for re-litigation in the future when it comes to classifying broadband. If the DOJ and FCC’s request is approved by the court, the previous rules, spearheaded by then-FCC Chairman Tom Wheeler, would be voided from the judicial record.

Deadlines Set in Net Neutrality Legal Bout

The DC Circuit Court of Appeals has set briefing deadlines in the challenge to the Federal Communications Commission’s net neutrality repeal. Mozilla, state attorneys general and other groups fighting the FCC’s rollback will file their arguments Aug. 20. The Internet Association, Computer & Communications Industry Association and other organizations bolstering their case will file Aug. 27. The FCC has to respond Oct. 11, and the telecom associations backing the agency, including CTIA and USTelecom, will file their briefs Oct. 18. Final briefs in the case are due Nov. 27.

US Court of Appeals for DC Circuit Rejects Petition to Reverse FCC's UHF Discount

The US Court of Appeals for the DC Circuit has declined to overturn the Federal Communications Commission's restoration of the UHF discount on the grounds that the parties challenging it--Free Press, Prometheus Radio--did not have standing to bring the challenge. That could be a big boost to broadcast mergers and acquisitions, though it might not be the big boost for the Sinclair-Tribune deal given the FCC's other problems with the deal. The UHF discount means that only half of a UHF TV station's audience counts towards the 39% national ownership cap.

Modeling complexity in the AT&T–Time Warner merger appeal

[Commentary] To be sure, the Department of Justice has a right to appeal [the Sinclair/Tribune decision], and it has done so well within the 60 days allowed from the handing down of the Judge Leon decision on June 12.

Net Neutrality Could Become a Merger Antitrust Issue. Someday.

Watch for network neutrality arguments in future antitrust analysis of mergers, competition lawyers said. The Justice Department’s high-profile attempt to block AT&T from buying Time Warner didn’t address the possibility that the AT&T customers could see slowed internet traffic for some content. But that kind of argument could come up one day. The DOJ has looked at past merger cases on the grounds of its impact on open internet access said Ketan Jhaveri, a former trial lawyer at the DOJ’s Antitrust Division.

There is a lot to fix in US antitrust enforcement today

[Op-ed] The court decision allowing AT&T to acquire Time Warner is an example of the inability of our current system of courts and enforcement to prevent the decline in competition in the modern US economy. In the case of that merger, the Antitrust Division of the US Department of Justice gets credit for making an attempt to block what it viewed as an anti-competitive transaction. What’s more, that view proved prescient after the now-merged firm almost immediately raised prices after executives testified that the synergies from the deal would immediately cause lower prices.

Six questions you were afraid to ask about Google’s EU antitrust case

  1. What exactly did Google do wrong here? The European Commission has ruled that Google has been unfairly using Android (which Google owns and develops) to push Google Search (which makes up most of Google’s business) on users, giving them an unfair and uncompetitive advantage.

Introducing Judge Brett Kavanaugh: Siding with Big Business and Big Brother

On July 9, President Donald Trump nominated Judge Brett Kavanaugh to fill the Supreme Court vacancy left by the retirement of Justice Anthony Kennedy. This week, we examine some of Judge Kavanaugh’s decisions on key communications policy issues, like net neutrality, the First Amendment, and surveillance. At 53, Kavanaugh is relatively young, consistent with President Trump's desire to appoint judges who can serve on the High Court for decades. Since 2006, Kavanaugh has served on the U.S.

Brett Kavanaugh, Who Has Ruled Against Campaign Finance Regulations, Could Bring An Avalanche of Big Money to Elections

DC Circuit Court Judge Brett Kavanaugh’s appellate court decisions and public comments suggest that he will accelerate the trend toward a political system dominated by wealthy elites — often operating in the shadows, without any form of disclosure. At a March 2016 event at the American Enterprise Institute, Kavanaugh was asked point-blank if he believes that “money spent during campaigns does represent speech, and therefore deserves First Amendment protection.” His answer: “Absolutely.” In 2009, Kavanaugh authored an opinion in a case called EMILY’s List v.

Justice Department to appeal its loss in the AT&T-Time Warner trial

The Justice Department filed an appeal challenging its loss in the AT&T-Time Warner antitrust trial. AT&T completed its $85 billion acquisition of Time Warner a few weeks ago after a federal judge rejected the Justice Department’s argument that the deal would be anti-competitive. “My guess is that the government is going to try to show that a lot of important evidence was rejected by the judge, and the judge put too much weight on the testimony of the merging parties," said Gene Kimmelman, a former Justice Department antitrust official who now leads Public Knowledge. 

Under Assault

US District Court Judge Richard Leon’s decision to approve the AT&T-TimeWarner merger was a horse-and-buggy decision utterly blind to the realities of the twenty-first-century economy. His magnum opus means that one of the largest internet service providers is permitted to merge with one of the largest TV and film companies, thereby creating a powerful entity controlling the content and distribution of some of the most important programming in the market.  Marrying content and carriage creates gatekeepers with every incentive to favor their own services at the expense of their competito

Under the radar: The Supreme Court decision Brett Kavanaugh is most likely to overrule

Judge Brett Kavanaugh, President Trump’s nominee to replace retiring Supreme Court Justice Anthony Kennedy, is less likely to override Roe v. Wade than to rein in the agencies at the heart of the modern administrative state. Here’s why. In 1984, the Supreme Court decided in Chevron v. NRDC that unless Congress has spoken clearly on the subject of a regulation, the courts should defer to an agency’s decision as long as it is reasonable, even if the courts would have reached a different interpretation. Whenever a statute is ambiguous, the agency enjoys wide discretion.

Watch Out, CNN: President Trump's Supreme Court Frontrunner Is Bad News for Free Speech

President Donald Trump may go far in living up to his much-ridiculed pledge to open up libel laws to make it easier to sue media outlets. How? Turn no further than Abbas v. Foreign Policy Group, a 2014 decision at the US Appeals Court for the DC Circuit authored by recent Supreme Court pick Brett Kavanaugh. At first blush, the decision looks like a win for libel defendants. In fact, when it came out, many reporters highlighted how Kavanaugh poured cold water on the notion that asking a question could be actionable as defamation by implication.

Judge Brett Kavanaugh decided against net neutrality and for NSA surveillance

Judge Brett Kavanaugh's past rulings suggest a reliably conservative voice on tech. His addition to the highest court in the country could vastly reshape the digital landscape. 

The Court Case That Enabled Today's Toxic Internet

There once was a legendary troll, and from its hideout beneath an overpass of the information superhighway, it prodded into existence the internet we know, love, and increasingly loathe. That troll, Ken ZZ03, struck in 1995. But to make sense of the profound aftereffects—and why Big Tech is finally reckoning with this part of its history—you have to look back even further. Section 230 of the Communications Decency Act, passed in 1996, states that platforms are not liable for the content they host—even when, like Good Samaritans, they try to intervene. Ken ZZ03 would be its first test.

Suspected criminals get privacy rights—what about the rest of us?

Less than a month after the European Union instituted rules to protect the privacy of its citizens, the United States Supreme Court took an important step to protect Americans against unwarranted government intrusion in criminal investigations. Now it is time for another branch of government—the Congress—to act to protect our privacy the rest of the time. June’s decision in Carpenter v. U.S. (16 U.S. 402) focused on the government’s access to private information.

The Supreme Court just quietly gutted antitrust law

[Commentary] The Supreme Court recently delivered the most significant antitrust opinion by the Court in more than a decade --  Ohio v. American Express -- one that made it extraordinarily more difficult for the government to rein in certain companies that abuse their market power. In it, the Court dealt a huge blow to the ability of government and private plaintiffs to enforce existing antitrust laws, making it easier for dominant firms — especially those in the tech sector — to abuse their market power with impunity.

Is Facebook a publisher? In public it says no, but in court it says yes

Facebook has long had the same public response when questioned about its disruption of the news industry: it is a tech platform, not a publisher or a media company. But in a small courtroom in California’s Redwood City, attorneys for thecompany presented a different message from the one executives have made to Congress, in interviews and in speeches: Facebook, they repeatedly argued, is a publisher, and a company that makes editorial decisions, which are protected by the first amendment.

California Supreme Court: Yelp can't be ordered to remove posts

A divided California Supreme Court has ruled that online review site Yelp.com cannot be ordered to remove posts against a San Francisco (CA) law firm that a judge determined were defamatory. The 4-3 ruling came in a closely watched case that internet companies warned could be used to silence online speech. A San Francisco judge determined the posts against attorney Dawn Hassell’s firm were defamatory and ordered Yelp in 2014 to remove them. A second judge and a state appeals court upheld the decision.

How Conservatives Weaponized the First Amendment

Conservative groups, borrowing and building on arguments developed by liberals, have used the First Amendment to justify unlimited campaign spending, discrimination against gay couples, and attacks on the regulation of tobacco, pharmaceuticals and guns. “The libertarian position has become dominant on the right on First Amendment issues,” said Ilya Shapiro, a lawyer with the Cato Institute. “It simply means that we should be skeptical of government attempts to regulate speech. That used to be an uncontroversial and nonideological point.

The 17 years since the Microsoft antitrust case taught us that regulation can spur innovation

In June of 2000, a judge in the US district court for the District of Columbia ruled that Microsoft should be broken up into two separate units—one for Microsoft’s operating system and another for its software products. In June of 2001, an appeals court disagreed. The Microsoft case set a precedent for not breaking up big tech companies, but also prohibited Microsoft from tying Internet Explorer to Windows.