DOJ Drops Challenge to California Net Neutrality Law; Trade Associations’ Case Now Takes Center Stage

In a significant development for the years-long net neutrality debate, yesterday the U.S. Department of Justice dropped its suit to enjoin California’s net neutrality law (SB 822) (No. 2:18-cv-0660, E.D. Cal.).  The California law reimposes on broadband Internet Service Providers several requirements the Federal Communications Commission (FCC) rescinded in its 2018 Restoring Internet Freedom Order, 33 FCC Rcd 311.  For example, the California law prohibits blocking of lawful content, apps, and services; throttling of Internet traffic; and paid prioritization of traffic, and also contains a general prohibition on unreasonable practices.  The DOJ sued to enjoin the California statute as being conflict-preempted.  Several amici, including groups of scholars and many state Attorneys General, weighed in on both sides, and briefing on the preliminary injunction was complete.  With the new federal administration in place that may have a different view on net neutrality regulation, however, the DOJ elected to bow out of the fight.  But this is not the end.  Several telecommunications/internet trade associations have a separate pending case before the same judge, challenging the statute on preemption and Dormant Commerce Clause grounds, and are to report to the court on Feb. 16 how they wish to proceed in light of the DOJ’s action (No. 2:18-cv-02864, E.D. Cal.).  That case remains especially important as a bellwether, because at least some other states have looked to the California statute as a template for net-neutrality laws.

The other major pending case on a state net neutrality law is in Vermont district court, where major trade associations have challenged a Vermont law and executive order that tie eligibility for state contracts to meeting specified net neutrality requirements (No. 18-00167, D. Vt.).  This type of law, tying net neutrality to eligibility for state contracts rather than imposing duties on all internet providers, is different from California’s and represents the other major flavor of state net neutrality efforts, whether pursued by statute or executive order.  The DOJ did not join the Vermont case.  That case had been stayed pending a ruling on the preliminary injunction request in California, but now should go forward.  The first order of business presumably will be to complete briefing on and decide the State’s pending motion to dismiss for lack of standing, which alleges the plaintiffs have suffered no injury from the state requirements.

Can Technology Companies Easily Get an H-1B Specialty Occupation Worker Visa for Computer Programmer or Related Occupations?

Well, the answer is maybe, as navigating the US immigration landscape is never easy.  IT companies should pursue H-1B visas for their qualified computer related positions, as on February 3, 2021, the U.S. Citizenship and Immigration Service (USCIS) rescinded its Dec. 22, 2000 ‘Guidance Memo on H-1B computer related positions,’ according to which a Computer Programmer position did not qualify for the most common professional worker H-1B visa.  In recent years, USCIS has been reviewing H-1B petitions for computer related positions under heightened scrutiny, often challenging the bachelor’s degree requirement, issuing extensive Requests for Evidence or  denials.  So when last week, the USCIS rescinded its 2000 Memo and noted that further guidance would be forthcoming, IT companies and their immigration attorneys became optimistic and excited.

The agency action results from a December 16, 2020 decision by the U.S. Court of Appeals for the 9th Circuit in Innova Solutions, Inc. v. Baran,  where the court overturned USCIS’ denial of an H-1B nonimmigrant visa petition for a Computer Programmer and found the denial was arbitrary and capricious. That decision was one of the first Appeals Court decisions to rule in favor of the H-1B IT petitioner.  In Innova, the USCIS denied the petition stating that Innova failed to show that the position of Computer Programmer is a specialty occupation (i.e one that requires a bachelor’s degree in a related field as a minimum educational requirement for entry).  USCIS relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH), which states that “[m]ost computer programmers have a bachelor’s degree,” and that a bachelor’s degree is the “[t]ypical level of education that most” computer programmers need”

The Ninth Circuit disagreed and compared the OOH statements that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject” and a bachelor’s degree is the “[t]ypical level of education that most workers need to enter” with the computer programmer occupation to the regulatory language at 8 C.F.R. 214.2(h)(4)(iii)(A), which requires that a bachelor’s degree “normally” the minimum education required for the occupation.  Given the agreement between the two requirements, the court found that USCIS’s denial of the visa based on the OOH criteria was arbitrary and capricious, stating that “there is no “rational connection” between the only source USCIS cited, which indicated most computer programmers have a bachelor’s degree and that a bachelor’s degree is typically needed, and USCIS’s decision that a bachelor’s degree is not normally required”. Id. at *9.

As such, the Innova Solutions decision is a refreshing rebuttal to USCIS’s longstanding practice of challenging computer programming on specialty occupation grounds.  It is also a reminder to the USCIS that the OOH may not be used as a Holy Grail to deny H-1B petitions that are based on well-reasoned arguments by the petitioner.  So should IT companies file H-1B petitions for their workers in computer positions? The answer is yes, with the assistance of competent immigration counsel.


FCC Emphasizes Limits On Local Fees For Small-Cell Facilities

Wireless telecom providers have been deploying new small-cell technology and equipment for 5G service across the nation.  Deployment often requires the providers to obtain access to public rights of way to put their small-cell equipment on cities’ or municipalities’ utility poles (or use underground ducts or conduit).  Cities and municipalities, of course, seek compensation for allowing this access to public equipment and rights-of-way.  The FCC addressed this compensation issue in 2018, setting safe-harbor caps on local fees but allowing higher charges if they meet certain requirements.  Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd 9088 (2018).  The Ninth Circuit upheld that decision in relevant part.  City of Portland v. FCC, 969 F.3d 1020 (9th Cir. 2020).

Clark County, Nevada (home of Las Vegas) adopted an ordinance with annual fees well above the FCC’s safe harbors.  The ordinance required holder of a Master Use License Fee to pay 5% of gross revenues each calendar quarter, plus a Wireless Site License Fee of $700 to $3,960/year/facility (with annual increases of 2%), plus an Annual Inspection Fee of $500 per Small Wireless Facility in county rights-of-way.  Verizon challenged that ordinance at the FCC as being preempted by 47 U.S.C. 253(d) because it effectively prohibited Verzon from providing service.  The FCC, through its Wireless Telecommunications Bureau, recently dismissed Verizon’s complaint without prejudice in light of Clark County having adopted a new ordinance.  Petition for Declaratory Ruling That Clark County, Nevada Ordinance No. 4659 is Unlawful Under Section 253 of the Communications Act as Interpreted by the Federal Communications Commission and is Preempted, WT Docket No. 19-230, DA 21-59 (rel. Jan. 14, 2021).   In doing so, however, the FCC emphasized three key aspects of its rules that certainly will bear on any pending or future disputes between wireless providers and other municipalities that seek to impose fees above the FCC’s safe harbors.  These points appear directed at preventing other state or local authorities from making some of the same arguments Clark County was making.

Continue reading “FCC Emphasizes Limits On Local Fees For Small-Cell Facilities”

CJEU Declares Privacy Shield Invalid but Upholds Validity of Model Clauses (Sort Of)

A sense of déjà vu descended over the international data transfer landscape on July 16, 2020. In a landmark ruling, the Court of Justice of the European Union (CJEU) announced that Privacy Shield, one of the main mechanisms used by companies to transfer personal data from the EU to the United States, is invalid.

To read the full text of this Duane Morris Alert, please visit the firm website.

The First Amendment Protects Radio Hosts Covering Online Attacks Against A Sports Referee

The University of North Carolina (UNC) NCAA men’s basketball team ended the 2017 season for the University of Kentucky (UK) in a controversial game. Indeed, many UK fans blamed their team’s loss on supposed bad calls by a referee, John Higgins.

The wrath of the UK fans was so intense that Higgins received criticisms at his private job. On top of that, two Kentucky Sports Radio (KSR) hosts, Drew Franklin and Matt Jones (the hosts), vented negative comments about Higgins’ officiating. In so doing, the hosts conveyed online attacks that had been posted about Higgins. While reporting about the online attacks, the hosts at times repeated the attacks word for word, while minimally suggesting that fans not promulgate further attacks.

Higgins believed that the attacks and the reporting harmed him personally and his business. He filed suit against KSR and the hosts, alleging various causes of action. The federal district court dismissed the lawsuit based on the First Amendment, and Higgins appealed to the Sixth Circuit. In a recent decision in Higgins v. Kentucky Sports Radio, the Sixth Circuit agreed that the district court correctly dismissed the case on First Amendment grounds. Continue reading “The First Amendment Protects Radio Hosts Covering Online Attacks Against A Sports Referee”

Attorney General Submits Final CCPA Regulations for Approval

On June 1, 2020 the California Attorney General (AG) submitted the final text of the CCPA regulations to the California Office of Administrative Law (OAL) for approval.  The final regulations appear to be unchanged from the latest draft published on March 11, 2020.

Generally, the OAL has 30 days to review and determine whether to approve the regulations.  But currently, an executive order has granted an additional 60 days to finalize proposed regulations in light of the challenges agencies are facing due to COVID-19.  Additionally, any regulation that is filed June 1 or later would not typically be effective until October 1.  However, an agency can request an earlier effective date if it can demonstrate good cause, which is what the AG has done here.  The AG has requested the OAL approve the regulations within 30 days and that an exception be made such that the regulations will be effective upon filing with the Secretary of State. Continue reading “Attorney General Submits Final CCPA Regulations for Approval”

FTC Clamps Down On Unreliable Coronavirus Marketing Claims

The coronavirus pandemic has caused illnesses, deaths, isolation and tremendous economic disruptions. Not surprisingly, many people are feeling desperate for solutions, and unfortunately, they can fall prey to misleading coronavirus marketing claims.

The Federal Trade Commission (FTC) is seeking to prevent these marketing practices. Indeed, the FTC recently sent ten warning letters to multi-level marketing companies (MLMs) telling them to remove and address claims that the MLMs or their participants are making regarding the supposed ability of products to prevent or treat the coronavirus or about the alleged ability of people to recoup lost income. Continue reading “FTC Clamps Down On Unreliable Coronavirus Marketing Claims”

COVID-19 Responses in the Telecommunications Industry

In response to the COVID-19 pandemic, legislators and telecommunications regulators have focused primarily on promoting telemedicine, remote learning and better availability of broadband service in general, as well as ensuring that low-income customers will be able to keep their telephone and broadband service during the crisis.

To read the full text of this Duane Morris Alert, please visit the firm website.

Top Tips: Keeping Data Safe When Working Remotely

By John M. Benjamin and Edward Pickard

The coronavirus pandemic has had a severe impact on businesses right across the globe and with a third of the world now in lockdown, thousands of businesses have moved most of their workforce to remote working. Although working from home allows a business to continue operating, it brings significant security risks, placing a greater need to maintain compliance with relevant data security requirements.

Maintaining the security of company data is the responsibility of both the employer and employee and continuing to maintain appropriate security measures is critical at this time. Below are some key points for employees and businesses to keep data secure when working remotely. Continue reading “Top Tips: Keeping Data Safe When Working Remotely”