Court case

Several advocacy groups have asked the United States Court of Appeals in Washington to stay the Federal Communications Commission’s April 20 decision to relax the national TV ownership cap by restoring the UHF discount in calculating station group coverage.

The effect of the FCC action is to lift the allowable coverage from 39% of TV homes to 78% assuming that all groups in a market are served by UHF stations. The immediate effect of the stay would be to derail Sinclair's proposed $3.9 billion purchase of Tribune Media that would balloon Sinclair's coverage from just below 39% to 72%. The motion for emergency stay pending a full review of the FCC action was filed by the Institute for Public Representations at Georgetown University Law Center on behalf of Free Press, Office of Communication of the United Church of Christ, Prometheus Radio Project, Media Mobilizing Project, Media Alliance, National Hispanic Media Coalition, and Common Cause. The court has given the FCC until June 1 to respond to the motion.

Daryl Parks, the attorney representing "Cleveland Broadband Consumers" claiming AT&T is "redlining" service in Cleveland and elsewhere, is pledging to open a multi-front legal attack on the company, including raising questions about its fitness for the multi-billion-dollar contract to manage FirstNet.

AT&T has said it does not redline and continues to invest in wired and wireless broadband in Cleveland and elsewhere, but Parks is not persuaded. Parks has sent a letter to AT&T and its board warning that "in the near future" he plans to certify a class for a class action lawsuit, bring a formal redlining complaint at the FCC, and "raise with the nation’s governors the issue of AT&T’s suitability to manage the emergency communications service FirstNet, given the urgency of providing service to low-income communities by first responders in disasters such as Hurricanes Andrew, Katrina and Sandy."

[Commentary] When the government engages in prospective cell-site surveillance, it obtains a court order requiring a cell provider to provide the phone’s location at that moment in “real time.” That contrasts with collection of historical cell-site records, when the government obtains a court order requiring the provider to hand over stored records retained by a cell provider in the ordinary course of business from some time in the past. Although every circuit court and state supreme court to rule on historical cell-site collection has concluded it is not a search, the Florida Supreme Court ruled in Tracey v. Florida that prospective cell-site surveillance is a search. Importantly, Tracey went out of its way to say that it was ruling only on prospective surveillance and not on historical collection. On May 22, the U.S. Court of Appeals for the Fifth Circuit ruled in United States v. Wallace that the reasoning of its precedents on historical collection applies equally to prospective cell-site surveillance. In Wallace, the Texas Department of Safety had a warrant out for the arrest of a gang member. The police knew the suspect’s cell phone number, so they obtained what the opinion calls a “Ping Order” authorizing the police to determine the locations of cell site towers being accessed by a number.

[Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School]