• On July 7, 2011, the United States Court of Appeals for the Third Circuit held that the FCC must revisit its 2008 order that lifted a ban on companies owning newspaper and broadcast stations in the same market. The appeals court found that the "procedures followed by the Commission were irregular" and did not comply with the Administrative Procedures Act (APA), in that interested parties were not given adequate notice and opportunity to comment. The court did not reach the merits of the rules, but instead remanded the issue to the agency for further proceedings that should follow the APA. The court also, however, denied the appeal challenging the FCC's rules limiting cross-ownership of radio and television stations. With respect to that aspect of the FCC's rules, the court concluded that the "FCC plausibly justified its position that diversification of ownership would enhance the possibility of achieving greater diversity of viewpoints." The court likewise rejected the media companies' challenge to the media-ownership rules on First and Fifth Amendment grounds, finding that the FCC's rules satisfy the applicable constitutional test under First Amendment jurisprudence. Prometheus Radio Project v. FCC, Nos. 08-3078 et al. (3d Cir.).
  • On July 1, 2011, the United States District Court for the Western District of Kentucky issued another ruling in the suit between TracFone Wireless and the Kentucky Commercial Mobile Radio Service Emergency Telecommunications Board over whether, in what manner, and for how long TracFone should have collected and paid state-mandated service fees to the Board. After ruling in August 2010 that TracFone owes the fees on its resale and prepaid customers, the court now has ruled that TracFone is entitled to choose the method for collecting the fee from among the statute's three choices, stating "[e]ven after the Board promulgates regulations under Option C, three options should remain under the terms of the statute." In a blow to TracFone, however, the court agreed with the Board that "none of its actions to date estop it from now requiring TracFone to remit the past payments that the statute required." The court concluded that TracFone owes fees back to 2006, because "[e]ven though the CMRS Board initially failed to follow the procedures which this Court has ultimately required, that failure is not sufficient reason to conclude that TracFone can escape the broad statutory mandate." The court gave the Board until July 18, 2011 to submit its motion for a specific judgment amount, including any requests for interest and attorneys' fees. Kentucky Commercial Mobile Radio Serv. Emergency Telecomms. Bd. v. TracFone Wireless, Inc., No. 3:08-cv-660-H (W.D. Ky.).
  • On June 30, 2011, the Court of Appeals of Michigan affirmed a Michigan trial court's grant of summary judgment to Genoa Township and Verizon Wireless, among others, in a case brought by condominium owners seeking to enjoin the Township from allowing Verizon Wireless to install an antenna on top of the water tower in their complex. The homeowners argued that the developer's original deed allowing installation of the water tower, which labeled the easement an "Easement for Public Utilities (Water Tower Easement)", did not extend to the facilities Verizon sought to erect on the tower. The court of appeals concluded that "[b]ased on the plain and unambiguous language in … the deed," the relevant easement "includes utilities for telephone and telecommunications systems and their supporting equipment." The court also dismissed the owners' argument that the tower was not designed for the primary benefit of the owners, concluding that the deed did not turn on "whether the tower and accessory building are necessary for the benefit of the [condominium complex]." Copeland v. Genoa Township, No. 301442 (Mich. Ct. App.).