The Law and Technology Institute at

THE CATHOLIC UNIVERSITY OF AMERICA, Columbus School of Law

together with the

Federal Communications Bar Association

PRESENT THE 24TH ANNUAL

NATIONAL TELECOMMUNICATIONS AND TECHNOLOGY MOOT COURT

COMPETITION

COMPETITION PROBLEM (Released December 8, 2017)

Table of Contents

1. Competition Schedule 2. Competition Rules 3. Competition Problem

a. Memorandum Opinion and Order and Declaratory Ruling b. Dissenting Statement of Commissioner John Smith c. Petition for Review

Competition Schedule

Problem Distribution Friday, December 8, 2017 Brief Due Friday, January 19, 2018 Oral Arguments Friday, February 9, 2018 and Saturday, February 10, 2018

Competition Rules On Friday and Saturday, February 9 and 10, 2018, the Twenty-Fourth Annual National Telecommunications and Technology Moot Court Competition will be hosted by the Law and Technology Institute of The Catholic University of America, Columbus School of Law (“CUA”), and the Federal Communications Bar Association (“FCBA”). The National Telecommunications and Technology Moot Court Competition encourages law students with a particular interest in the fields of telecommunications and technology law to strengthen their appellate advocacy skills in a diverse and competitive setting. The rules governing the Competition are set forth below. I. ORGANIZATION OF COMPETITION & RESPONSIBILITIES OF

MANAGEMENT AND PARTICIPANTS

A. GENERAL

1. The Steering Committee of the National Telecommunications and Technology Competition (“Competition”), which is comprised of the Co-Directors of the Law and Technology Institute, certain members of the Moot Court Board of CUA, including the Vice Chancellor of the Competition (“Vice Chancellor”), and members of the FCBA Moot Court Committee (collectively, the “Committee”), will apply and enforce these rules with due consideration for the teams and the Competition. The Committee shall be responsible for the management of the Competition. Any and all questions concerning the Competition shall be brought to the attention of the Committee as soon as practicable.

2. Each team wishing to participate in the Competition shall submit a registration form containing the contact information for the team and school, together with an administrative fee of $400.00. Fee waiver requests will be considered by the Committee on a case-by-case basis.

3. In order to foster diverse competition no school may register more than two teams to compete in the competition. An official law school moot court association team is given preference for selection to the competition if space is limited. In the event that more than one affiliated moot court association teams seek to register, the individual moot court association must determine which team is given preference. The additional team will be placed in the pool of non-affiliated moot court association teams from that school. In the event that a school seeks to register more than one non-affiliated moot court association team, preference will be given to the team that returns their completed registration form first to the FCBA.

4. Each team shall designate one representative to whom information and briefs may be sent and with whom questions and concerns may be discussed.

5. All competitors are bound by their law school honor codes with respect to

their conduct under the Rules of this Competition. If a law school does not have its own honor code, it must abide by CUA’s honor code.

II. DISTRIBUTION OF THE RECORD AND RULES

A copy of the Record and these Rules will be distributed with the competition problem to the representative designated by each team.

III. THE COMPETITION

A. ROUNDS

1. Preliminary Round.

The 2018 Competition will be held on Friday, February 9 and Saturday, February 10. Preliminary rounds will be held on Friday evening and Saturday morning as needed, during which each team will argue on-brief and off-brief. Two members of each team must argue in each round.

2. Semi-Final And Final Rounds

The top four teams after the preliminary rounds will advance to the semi-final rounds. Scoring for the semi-final rounds is solely on the basis of the semi-final round oral argument performances of the teams participating in that round. To the extent possible, the four teams advancing to the semi-final round will argue on-brief. If both teams are not able to argue on brief, side designations will be determined by coin toss. The winners of each of the two semi-final round moots shall advance to the final round. The winner of the final round will be determined by the judges of the final round, solely on the basis of the final round oral argument performances of the teams participating in the final round. Again, if both teams are not able to argue on brief, side designations for the final round will be determined by coin toss.

B. TEAMS

Each team shall consist of two or three student members. Team members must be students enrolled in a full-time or part-time program at the law school that they represent. Only candidates for a Juris Doctor may participate in this Competition. All team members may contribute to the writing of the brief and may present oral argument, but only two team members may argue in any single round. No substitution of team members will be permitted after the team has submitted its brief, except upon written consent of the Committee.

IV. SIDE DESIGNATION

The Committee will randomly assign a side designation to each team, as well as a team number. Teams will be notified via electronic mail, of their side designations on the day of the problem release. Teams must submit a brief for the side designated to them.

A. BRIEFS

1. Submission And Delivery of Briefs

Each team must submit two versions of its written brief electronically by 11:59 p.m. EST, on Friday, January 19, 2018. Only those briefs received by 11:59 p.m. EST, on January 19, 2018, will be considered timely.

The briefs must be either in Microsoft Word or PDF format, and submitted to the Vice Chancellor by email (cua.nattel2018@gmail.com ). The original brief must include the names of the competitors and the team number. The judge’s brief must have the team number and must not display the names of the competitors. The Committee will distribute the electronic version of each judge’s brief to all competitors.

2. Format Of Briefs

The briefs must be submitted in either (1) Microsoft Word 2000 format (or more recent version of Microsoft Word), or (2) Portable Document Format (PDF) readable by Adobe Reader. If PDF is used, the electronic copies of the briefs must the brief must be text-searchable using a standard PDF reader word search function (i.e., briefs scanned into PDF as graphics files are not acceptable).

Briefs will be in the format required under the Federal Rules of Appellate Procedure (“FRAP”) and the Local Rules of the United States Court of Appeals for the District of Columbia Circuit, except as otherwise stated herein.

Briefs will contain the following sections in the following order: (1) cover page; (2) table of contents; (3) table of authorities;1 (4) jurisdictional statement; (5) issues presented; (6) statement of the case; (7) statement of the facts; (8) summary of the argument; (9) argument; and (10) conclusion. Notwithstanding FRAP 28(b), Appellees are required to include all of the foregoing sections in their briefs.

The relevant text of all statutes and constitutional provisions may be placed in an appendix instead of the body of the brief. It is not necessary to attach the Record to the brief.

The Certificate required by Circuit Rule 28(a)(1), the glossary required by Circuit Rule 28(a)(3) and the reference to oral argument required by Circuit Rule 28(a)(7) should not be included in any brief.

The typeface used to produce the brief shall be at least 12 points. Serif types are preferred, although headings and captions may use sans-serif type. Monospaced fonts such as courier are disfavored, but if used, they may not exceed ten characters per inch (“CPI”). Competitors should measure a ten-character length of their typeface with a ruler to ensure compliance. Note that Courier 10-point type may not result in ten CPI on every word processing system. Characters must produce a clear black image on white paper. Briefs must have one-inch

1 Pursuant to Circuit Rule 28(a)(2), teams must place an asterisk in the left-hand margin of the table of authorities besides the authorities on which the brief principally relies. The table of authorities also must include a notation at the bottom of the first page stating: “Authorities upon which Appellant/Appellee chiefly relies are marked with asterisks.”

margins on all sides and the text must be double-spaced. Footnotes must be single-spaced and use characters the same point size as the text.

No brief shall exceed forty (40) pages, including footnotes and citations. The only material excluded from the page limit shall be the following: cover page, table of contents, table of citations, certificate of service, certificate of typeface and volume, appendix containing relevant statutory and constitutional provisions, and the certificate required by Rule D(3) of these Competition Rules.

Citations will be complete and in the format prescribed by the most recent edition of The Bluebook: A Uniform System of Citation. The typeface and abbreviation conventions will be in accordance with Rules 2.1 and 2.2 of The Bluebook. Underscoring may be used to indicate the use of italics, in accordance with The Bluebook Rule P.1.

The electronic version of the “original brief” must bear the typewritten names of all team members, their electronic signatures, and the names of their school on the front cover page and nowhere else. The names or signatures of the team members or their schools should not be included anywhere else in the briefs. Instead, each team shall mark the electronic judge’s brief with the team number assigned to them. This team number shall be placed in the upper right hand corner of each brief submitted to the Committee. By electronically signing the original brief, each team certifies that the brief has been prepared in accordance with these Rules, and that it represents the work product of the team members only.

B. BRIEF CERTIFICATES

In addition to the briefs, each team shall submit a separate “certificate of service” electronically containing the following information:

1. a statement that the work product contained in all copies of the team’s brief is in fact the work product of the members of the team;

2. a statement that the team has complied fully with its law school honor code or the honor code of CUA; and

3. an acknowledgment that the team has complied with all Rules of the Competition.

The electronic submission email of the brief must include the certificate as a separate file from the brief, and labeled “Certificate of Service – Team X_”.

C. SCORING OF BRIEFS

Brief scores shall constitute fifty percent of each team’s final score for each preliminary round, but will not count in the semi-final and final rounds.

Briefs will be scored by a panel of judges. Briefs will be evaluated anonymously and graded on a scale of one to fifty points, in accordance with the resources made available to the brief judges and in accordance with the judging criteria provided in Section III, Rule F. After a

team’s brief score has been determined, penalties for format and citation errors and rule violations will be subtracted from the initial score given.

The following charts provide the point deductions for format and citation errors.

FORMAT ERRORS POINT DEDUCTIONS Non-one inch margin 1 Non-double spaced text and single spaced footnotes 1 Improper typeface, font size, or characters per inch 1

Improper ordering or omission of brief sections 1 per section omitted

Exceeding page limits 3 per page (and arguments beyond the page limit will not be considered)

Excessive use of footnotes to circumvent page limits ½

Competitor names or name of team including law school on any location except on front cover of original brief ½

Late submission of electronic briefs to Committee (Deadline 11:59 p.m. EST on Friday, February 19, 2016). 2 per day

Submission of wrong side brief 5

Failure to submit judge’s brief electronically at time of submission 1

Failure to include certificate of service as a separate file at time of submission (Includes 1. A statement that the work product contained in all copies of the team’s brief is the work product of the members of the team only; 2. A statement that the team has complied fully with its law school honor code or the honor code of CUA; and 3. An acknowledgment that the team has complied with all the Rules of the Competition).

½

Failure to submit cover page on original brief to Committee (Includes 1. Typewritten names of all team members; 2. Their signatures; 3. Team number assigned; and 4. The name of their law school on the front cover page of the brief).

½

Inclusion of names or law school on any other pages of the brief except the cover page of original brief

1 (and re-submission required)

CITATION ERRORS POINT DEDUCTIONS

Excellent: almost no citation errors and demonstrated ability to correctly use sophisticated citations (e.g. periodicals, proper use of typefaces, proper use of abbreviations from tables).

0

Very Good: some minor oversights, but overall understanding of major rules (e.g. proper citations for cases and statutes). 1

Good: general grasp of the Bluebook, but there is a clear misunderstanding of a few rules 2-3

Average: minor citation errors, but does not impair the ability of the reader to identify or find the authority and that does not misrepresent the material.

4

Below Average: major citation errors that affect the ability of the reader to find or identify the authority or misrepresent the material.

5

D. ORAL ARGUMENT

1. Location

The Competition will be held at The Catholic University of America, Columbus School of Law, 3600 John McCormack Road, N.E. Washington, D.C. 20064. The Committee will determine the time and the room number for each preliminary round of arguments, and will notify each participating team of this information at least two weeks prior to the date selected for the first round of arguments.

2. Scoring

Team Score: The team score for its oral arguments will constitute fifty percent (50%) of each team’s final score for the preliminary round(s). If there is more than one preliminary round, the oral argument score will be determined by taking the average of the team’s scores from each of the preliminary round oral arguments. The brief score will constitute the remaining fifty percent (50%) of the team score for the preliminary round. A team’s performance in the semi-final and final rounds will be judged solely on its oral argument performance. The brief score will not be used in determining the winner(s) of the semi-final or final round.

Individual Score: Each individual competitor’s score will be the average of the various scores assigned to that competitor by the members of the judging panel in all of the preliminary rounds and semi-final round in which it has argued. An individual competitor must argue at least twice in order to be eligible to receive the Best Oralist award.

The winning team will be designated Best Team based upon its performance in the final round. The Best Oralist winner will be awarded based upon an average of performance in the

preliminary and semi-final round; brief scores will not be considered for Best Oralist. The Best Brief winners will be awarded based on the scores assigned to the briefs. Scoring will be on a scale of one to fifty points and in accordance with the judging criteria provided in Section III, Rule F.

3. Format of the Oral Arguments

Each team will be limited to thirty (30) minutes of oral argument, to be divided among its members, but only two members may argue in any one round. Each of those two team members must argue for at least seven (7) minutes per round in which they participate. Each team is responsible for communicating to the bailiff, prior to the beginning of oral argument, how it wishes to allocate its thirty minutes between team members. At their discretion, judges may interrupt arguments to pose questions and may allow additional time for the advocates’ response. Appellant may ask to reserve up to ten (10) minutes of its team’s allotted time for rebuttal. Prior to oral argument, the Appellant must notify the bailiff of its intention to request rebuttal time, and, at the beginning of oral argument, must seek leave of the panel for rebuttal.

For those preliminary rounds in which the parties will be arguing on-brief, the judges may receive the briefs of the parties whose arguments the judges are slated to hear. Off-brief and final round judges may, upon request, be given sample briefs. Judges will be encouraged to critique all advocates after the completion of each preliminary round of oral arguments.

E. GUIDELINES FOR JUDGING BRIEFS AND ORAL ARGUMENTS

1. Materials Used for Judging

The problem, a bench memorandum, and a copy of these Rules will be provided for the use of those judging team briefs. In accordance with Rule E(3)(b), sample briefs may also be provided to those judging oral arguments. See Section III, Rule A, for additional information on the rounds of the competition.

2. Judges Participating in Oral Arguments

Judges will consist of local practitioners in the field of communications law whenever possible. No individual employed by The Catholic University of America on a full-time basis, including professors and distinguished lecturers, shall serve as a judge in the semi-final or final rounds. An employee of The Catholic University of America serving as a preliminary round judge in a round in which a Columbus School of Law student competes may judge that round if, and only if, the student is not personally known to the employee and anonymity of the team has been preserved. Full disclosure of the employment relationship shall be made to both teams prior to the beginning of the competition round.

V. ANNOUNCEMENTS AND AWARDS

The team that wins the final round will be designated the Best Team. The Best Team, the team that wrote the Best Brief (as determined by the final brief scores), and the Best Oralist (based solely on the competitor’s preliminary and semi-final round oral argument scores) will be announced at a Reception following the conclusion of the final round of the Competition. All

participants and judges are invited, and encouraged, to attend the Reception. At the conclusion of the Reception, the Committee will award plaques to the winning and second place teams, as well as to the winners of Best Brief and Best Oralist.

VI. FACULTY OR OTHER ASSISTANCE

One of the purposes of this Competition is to develop the skills of appellate advocacy. Accordingly, the team members themselves must write their own briefs and prepare their own oral arguments. Faculty members, fellow students, attorneys or other individuals may not review, edit, or otherwise assist in the preparation of a team’s brief. Likewise, such individuals may not prepare the team members’ oral arguments for them. Participants may discuss issues and ideas relating to the Competition problem with faculty, fellow students, or others, and may use the assistance of such individuals to prepare for oral arguments in the form of mooting, question and answer sessions, etc. However, no other form of external assistance may be provided to the competitors.

VII. THE COMMITTEE’S AUTHORITY

1. As necessary, the Committee will issue an interpretation of these Rules upon request. All Rule interpretations promptly will be provided to each team.

2. The Committee has the discretionary authority to modify or waive any of these Rules as required.

3. These Rules may be modified as necessary to present the most equitable scoring of the competition where there is an odd number of competing teams.

4. The Committee will provide each participating team with any modifications or waivers.

5. The Committee will accept questions and requests for clarification of the problem until 11:59 pm EST Friday, January 19, 2018. Absent extenuating circumstances, all such requests must be received by the Committee by that date. All requests for clarification must be via e-mail. All clarifications provided by the Committee will be sent via e-mail to each participating team.

6. In the event of an ambiguity or conflict, these Rules and/or written communications to the participants will govern.

VIII. WITHDRAWAL

Teams wishing to withdraw from the Competition, must notify the Committee via email (cua.nattel2018@gmail.com) by 5:30 p.m. EST on Friday, January 12, 2018, or forfeit the $400.00 entrance fee.

Competition Problem

Before the Federal Communications Commission

Washington, D.C. 20554

In the Matter of WXVI News, Petitioner, and City of Metrocity, Respondent.

) ) ) ) ) ) ) ) ) ) ) )

GN Docket No. 17-90210

MEMORANDUM OPINION AND ORDER AND DECLARATORY RULING

Adopted: November 1, 2017 Released: November 6, 2017 By the Commission: Commissioner Smith dissenting and issuing a statement. I. INTRODUCTION

1. This case presents the timely question of whether a local government’s use of a transmitter to broadcast noise over the 5.8 GHz spectrum constitutes illegal jamming of unmanned aerial vehicles (UAVs). Following a natural disaster, the City of Metrocity established a transmitter for the purpose of broadcasting a continuous signal over the 5.8 GHz spectrum. Metrocity ostensibly intended to use the signal for communication with emergency responders and the general public. Although the transmitter functioned properly, Metrocity never conveyed or distributed substantive information over this spectrum. The noise emitted from the transmitter, however, grounded WXVI’s UAVs, which the company uses to report on current events. WXVI News challenges Metrocity’s use of the transmitter as illegal jamming under the Communications Act of 1934, as amended (the Communications Act). In this Memorandum Opinion and Order and Declaratory Ruling, we resolve this dispute in favor of WXVI. We conclude that 1) the local government’s continuous broadcast of a signal on the 5.8 GHz band constitutes illegal jamming under these circumstances, and 2) our ruling is supported by the fact that the city’s actions violated WXVI’s First Amendment right to report on matters of public concern.

II. BACKGROUND

2. On August 8, 2017, Hurricane Henry pounded the City of Metrocity for hours as the fifth-strongest storm ever to hit the United States. Hurricane Henry ripped through Metrocity

with 145-mph winds and torrential rainfalls of up to three feet. Flooding washed away roads and isolated a significant portion of the city’s population from emergency services. The storm’s devastation was extensive, leaving over 500,000 people without power and nearly destroying the city’s electrical grid. The storm disabled electric utility services, in addition to making the natural gas utility service suffer intermittent, temporary outages. Emergency services had to be provided to residents of the city and surrounding area through a combination of boats, helicopters, and traditional automobiles. However, with at least 60% of the city’s cell sites down, cellular service was unreliable, making communication between emergency responders especially challenging.

3. Given the damage to Metrocity’s telecommunications infrastructure, the Mayor of Metrocity created an emergency broadcast channel. This channel would enable the city to communicate important and timely information to disparate emergency service units in the field and to residents. Accordingly, on August 10th, Metrocity set up a transmitter powered by a generator on the Metrocity City Hall roof. This device transmitted a continuous, powerful signal at 5.8 GHz, which is part of the Industrial, Scientific and Medical (ISM) spectrum. The signal was broadcast at significant intensity across a twenty-five-mile radius.

4. Although the transmitter was fully operational and broadcast a constant signal for twenty-four hours each day, Metrocity did not broadcast any substantive information over the 5.8 GHz frequency. The city government failed to reach consensus regarding the content that should be transmitted through the emergency broadcast channel. As a result, Metrocity elected to wait until electricity and cellular service were restored. This restoration occurred on August 18th. Following the restoration of cellular service, Metrocity deactivated the transmitter, and the constant signal stopped. It is unclear whether any emergency services personnel or residents possessed a receiver capable of receiving an emergency broadcast channel at 5.8 GHz.

5. WXVI News operates as one of Metrocity’s four major broadcast television stations. In January 2017, WXVI News purchased two UAVs with high-definition video cameras, and secured all necessary operational permits. WXVI News uses its UAVs to report on a variety of events and incidents occurring in Metrocity, including traffic jams, sporting events, and breaking news. The organization follows a voluntary policy of non-interference with law enforcement and emergency services.

6. WXVI News’s UAVs are operated by global positioning system control and by connections to control devices. Although the UAVs can partly maneuver based on pre-programmed GPS instructions, WXVI News’s UAVs have been programmed to require both a wireless connection and a control device to operate and avoid accidents. The connection between the UAVs and the control devices occurs over the 5.8 GHz spectrum.

7. Prior to Metrocity’s activation of the transmitter, WXVI News used two UAVs to report on the plight of Metrocity’s residents during Hurricane Henry, and to provide information on the delayed responses by emergency service providers. Several of the stories reported by WXVI News between August 8th and August 10th resulted in injured or stranded residents receiving much needed emergency services. In particular, WXVI News aired a story on August

9th regarding a family trapped on the roof of their house for eighteen hours. This report resulted in a helicopter evacuating the family 15 minutes later.

8. However, when Metrocity activated the transmitter on August 10th, WXVI News’s UAVs were unable to form a connection to their control devices due to interference over the 5.8 GHz signal. As a result, WXVI News was unable to operate its UAVs to report on current events. On August 11th, WXVI News’s Chief Executive Officer called the Mayor of Metrocity to request that the transmitter be deactivated. The Mayor refused, noting the possibility that the emergency broadcast channel may be used to provide important information to the public and emergency services personnel. With the permission of the Mayor, WXVI’s CEO recorded their telephone call. On the recording, WXVI’s CEO can be heard to mention that WXVI’s reporting using its UAVs had resulted in the rescue of several Metrocity residents. In response, the Mayor can be heard to say, “Maybe if your coverage were more favorable to us, I’d be more sympathetic.” After WXVI ran a television news report on the Mayor’s statements during the call with the WXVI CEO, the Mayor held a press conference. At the press conference, the Mayor said he did not remember making that statement but did not deny making it. In response to a question about whether the city was jamming WXVI’s UAVs, the Mayor said, “I don’t know anything about jamming, but I can tell you I feel a lot safer knowing those drones aren’t going to fly into any rescue choppers.”

9. WXVI News filed an emergency petition with the Commission on August 15th, requesting an order that the transmitter be deactivated. In the petition, WXVI News argued that the transmitter was an illegal jamming device and violated its First Amendment right to freedom of the press. WXVI News also sought a declaratory ruling on these same grounds, and requested that the Commission exercise its forfeiture powers against Metrocity. We requested an expedited response from Metrocity, which was filed on August 19th. III. DISCUSSION

10. After an extensive review of the record and the parties’ paper submissions, we find that Metrocity’s use of a transmitter that broadcast a continuous signal over the 5.8 GHz spectrum was illegal jamming. Metrocity’s transmission is the kind of intentional interference with radio spectra that federal law and our regulations prohibit. Our conclusion is further confirmed by the fact that we conclude the city’s actions violate the First Amendment rights of WXVI.

A. Illegal Jamming Analysis 11. The first question before the Commission is whether Metrocity’s use of a

transmitter to emit a constant signal at 5.8 GHz constitutes illegal jamming. The term “jamming” refers to the use of a signal or device that intentionally creates interference on a communication channel. This interference blocks signals and transmissions from other devices, which effectively precludes those devices from communicating. Jamming technology does not differentiate between desirable and undesirable communications. For instance, the use of a jammer may prevent a GPS unit from receiving correct positioning signals or prevent a first responder from locating an individual in an emergency.

12. Federal law prohibits the use or sale of a transmitter designed to block, jam, or

interfere with wireless communications. This prohibition stems from the Communications Act. The Communications Act authorizes the Commission to regulate the interference potential of devices which, in their operation, are capable of emitting radio frequency energy sufficient to cause harmful interference to radio communications.1 No person may use a device in contravention of these regulations.2 The Communications Act also prohibits willfully or maliciously interfering with or causing interference to any radio communications of any stations licensed or authorized by the Commission.3 Accordingly, the Enforcement Bureau has indicated that the intentional jamming of Wi-Fi transmissions violates federal law.4

13. In the present case, Metrocity operated its transmitter at 5.8 GHz despite the fact that there is no evidence any first responders or members of the public had the ability to receive any messages transmitted over that frequency spectrum. Moreover, the city was not transmitting any substantive information over the 5.8 GHz spectrum. Metrocity, therefore, was intentionally transmitting mere noise for no legitimate purpose and thereby improperly grounded WXVI’s UAVs.

14. The 5.8 GHz spectrum is a common Wi-Fi communication frequency in the ISM

spectrum.5 ISM bands are typically open frequency bands that vary by region, and are intended for scientific, medical, and industrial purposes other than telecommunications. Operation of communications equipment on an ISM spectrum is subject to the condition that interference caused by another radiator or ISM application must be accepted.6 In other words, ISM band users generally lack regulatory protection from ISM device operation.

15. However, we find that the intentional transmission of mere noise over an ISM frequency resulting in blocked communications constitutes illegal jamming, notwithstanding our regulations regarding interference on ISM spectra. The fact that ISM users must accept interference is not the same thing as allowing individuals to deliberately interfere with other users of that spectrum. While it is possible that, if Metrocity had actually used its transmitter to send real information to first responders or the public, such use may be permissible, the fact remains that Metrocity’s broadcasts contained no information whatsoever. Accordingly, the signal served no legitimate purpose, and instead jammed other users of the 5.8 GHz spectrum for eight days. If anything, blocking WXVI’s reporting may have impeded or slowed rescue efforts. 1 47 U.S.C. § 302a(a). 2 Id. § 302a(b). 3 Id. § 333. 4 See, e.g., FCC Enforcement Advisory: Cell Jammers, GPS Jammers and Other Jamming Devices, Public Notice DA 11-250 (Enf. Bur. 2011). 5 Revision of Part 15 of the Commission’s Rules to Permit Unlicensed National Information Infrastructure (U-NII) Devices in the 5 GHz Band, First Report and Order, 29 FCC Rcd 4127 (2014); 47 C.F.R. § 18.301. 6 47 C.F.R. § 15.5.

WXVI’s reporting had resulted in the rescue of a family, and further use of UAVs may have alerted emergency responders to citizens in need of assistance.

16. We find the Mayor’s comments regarding the transmitter both in the telephone call with the WXVI CEO and at the press conference very instructive. We agree with WXVI that these facts indicate intentional jamming. The Mayor discovered that the transmission of noise was impeding the ability of a news organization to report the news, but rather than deactivate the transmitter, the Mayor instead indicated that its use was punishment for negative reporting on the city’s response and to prevent UAVs from flying for public safety purpose. Even if the noise had been unintentional jamming before the telephone call on August 11th, the use of the transmitter certainly became illegal jamming at that time.

17. For these reasons, we agree that Metrocity’s operation of a transmitter constituted illegal jamming.

B. First Amendment Analysis

18. Our conclusion that Metrocity’s use of the transmitter violates the Communications Act and our regulations is further supported by the fact that Metrocity’s conduct violated WXVI’s First Amendment rights to report on matters of public concern. We find that Metrocity’s broadcast amounted to a prior restraint on WXVI News’s speech, and the government’s interest is neither significant nor sufficiently compelling to satisfy strict scrutiny. Under such circumstances, we are confident that applying our rules to prohibit Metrocity’s conduct is appropriate.

19. The First Amendment of the U.S. Constitution guarantees that “Congress shall make no law . . . abridging the freedom . . . of the press.”7 The Supreme Court has interpreted this guarantee to afford special protection against orders that prohibit the broadcast of particular information or commentary orders that impose a “previous” or “prior” restraint on speech.8 However, the right to freedom of the press is not absolute.9 A prior restraint on expression can be overcome despite a “heavy presumption” against its constitutional validity.10 The government thus carries a heavy burden of showing justification for the imposition of a prior restraint.11

20. According to the Supreme Court’s prior restraint doctrine, an act constitutes a prior restraint if it is an “immediate and irreversible sanction” that completely takes an idea out of the marketplace.12 For example, an order forbidding all media coverage of a judicial

7 Near v. Minnesota ex rel. Olson, 23 U.S. 697, 707 (1931). 8 Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 556 (1976). 9 Near, 23 U.S. at 708. 10 Carroll v. Princess Anne, 393 U.S. 175, 181 (1968). 11 Organization for a Better Austin v. Keefe, 420 U.S. 415, 419 (1971). 12 Stuart, 427 U.S. at 559.

proceeding “freezes” speech and thus violates the First Amendment.13 Similarly, designating media coverage as an invasion of privacy is “not sufficient to support an injunction against peaceful distribution of informational literature.”14

21. Under the circumstances of Hurricane Henry, Metrocity’s use of the signal at 5.8 GHz amounted to a prior restraint. The only realistic method for reporting on events in Metrocity in the immediate aftermath of the hurricane was to use a UAV because roads were washed away. Thus, by grounding the UAVs, Metrocity effectively prevented WXVI News from disseminating information to consumers.

22. The city had no interest sufficiently significant to justify maintaining an unused emergency broadcast signal. Grounding the UAVs had absolutely no beneficial impact to Metrocity. Metrocity never actually broadcast any information over the 5.8 GHz spectrum. To the contrary, Metrocity only broadcast a constant stream of noise that prevented news organizations like WXVI News from reporting on citizens in desperate need of emergency services. And the Mayor’s comments undermine the notion that the city intended to use the transmitter for permissible First Amendment purposes. WXVI News’s reports had an indisputably positive impact on the welfare of citizens and helped direct emergency responders to stranded families. Metrocity’s transmitter accomplished nothing close to this. The fact that the transmitter might have had a positive impact is not a sufficiently compelling interest to justify the preclusion of using an effective method of reporting a matter of public concern.

23. For these reasons, we agree that Metrocity’s actions here violate the First Amendment as applied to WXVI and, therefore, it is reasonable for us to conclude that Metrocity’s actions constitute illegal jamming under the Communications Act and our regulations. IV. CONCLUSION

24. In accordance with the above analysis, we grant WXVI News’s petition. However, after considering the requirements for forfeiture under our rules,15 we conclude that forfeiture is inappropriate in this case. V. ORDERING CLAUSE

25. IT IS ORDERED that the petition of WXVI News is GRANTED and it is DECLARED that the broadcast of a constant signal at 5.8 GHz with no substantive information and that interferes with other communications, including between a UAV and its control device, constitutes illegal jamming.

26. IT IS ORDERED that WXVI News’s request for forfeiture is DENIED.

13 Id. 14 Keefe, 420 U.S. at 420. 15 See 47 C.F.R. § 1.80.

DISSENTING STATEMENT OF COMMISSIONER JOHN SMITH

Re: WXVI News, Petitioner, and City of Metrocity, Respondent, GN Docket No. 17-90210

I am surprised and concerned by my colleagues’ conclusions in this matter. My colleagues’ analysis overlooks fundamental aspects of the regulatory regime established for jamming and ignores well-established First Amendment precedent. For the reasons discussed below, I find that the City of Metrocity’s actions are not illegal jamming and nor a violation of the First Amendment as applied to WXVI.

First, Metrocity’s use of the transmitter is not the classic jamming the Communications Act and our regulations prohibit. As my colleagues correctly explain, the Communications Act prohibits any person or entity from willfully interfering with or causing interference to radio communications. The intentional jamming of Wi-Fi transmissions is a clear violation of federal law. Yet, after accurately describing this legal framework, my colleagues inconceivably conclude that Metrocity’s attempt to transmit an emergency broadcast station is illegal jamming. This conclusion ignores the undisputed fact that, in the present case, Metrocity initiated the transmission at 5.8 GHz to disseminate critical information to emergency responders and the public. While the transmitter did emit a constant signal at 5.8 GHz, this is the type of interference that must be accepted in the ISM spectrum. By operating its UAVs on the ISM spectrum, WXVI News assumed the risk that other devices may transmit across that same frequency. The fact that such transmission occurred and grounded WXVI News’s UAVs is unfortunate, but does not rise to the level of illegal jamming.

My colleagues’ reliance of the Mayor’s intemperate comments (made in the midst of a crisis) misses the point. In an appropriate case, those comments might indicate intentional jamming. However, it is crucial that Metrocity set up and begin operating the 5.8 GHz transmitter before it learned that the transmitter interfered with the WXVI UAVs. WXVI can point to no evidence that, when the transmitter was turned on, Metrocity had an intent to jam its UAVs. Moreover, the city did not change anything about the transmitter after it discovered the transmitter also grounded WXVI’s UAVs. Thus, despite the Mayor’s comments – which I attribute to a tense situation – there is no evidence that the interference with WXVI’s UAVs was intentional. For these reasons, I reject WXVI’s challenge to Metrocity’s operation of the transmitter.

Second, grounding WXVI News’s UAVs did not violate WXVI’s First Amendment rights by serving as an illegal prior restraint on speech. My colleagues’ conclusion to the contrary ignores the fundamental reality that Metrocity neither requested nor obtained an order enjoining WXVI News from reporting on Hurricane Henry. Indeed, Metrocity’s actions in no way prevented WXVI News from disseminating information to consumers. Rather, Metrocity’s transmitter incidentally prevented WXVI News from using one aspect of its coverage tools. WXVI News was able to employ other methods for news delivery, including all mechanisms in existence before WXVI News purchased UAVs in January 2017. While WXVI News’s use of UAVs is its primary reporting method, there is no evidence that this is the company’s only

reporting option. Accordingly, Metrocity’s use of the 5.8 GHz signal did not amount to an “immediate and irreversible sanction,”1 nor did it restrict entire classes of press coverage.

However, even if Metrocity’s continuous use of a signal at 5.8 GHz amounted to a prior restraint, the government had a significant interest in maintaining an emergency broadcast signal sufficient to satisfy the strict scrutiny analysis. This interest overcomes the burden against its constitutional validity. The devastation from Hurricane Henry was widespread, with large portions of the population isolated from emergency services. The Mayor responded quickly to the emergency, establishing a temporary broadcast channel to communicate information to emergency service units in the field. These emergency service responders may have been unable to coordinate and organize without this transmitter. I cannot simply ignore the impact Hurricane Henry had on Metrocity’s telecommunications infrastructure and electricity grid. The fact that Metrocity’s transmitter was a direct response to a large natural disaster helps Metrocity meet its high constitutional burden in this case. The government attempted to save lives after a natural disaster, and doing so interfered with only one component of a broadcaster’s coverage. And for the reasons discussed above, I will not read into the city’s actions any improper motive. I would find that Metrocity has satisfied its burden, heavy though it may be, in imposing a potential prior restraint.

Therefore, I respectfully dissent.

1 Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CITY OF METROCITY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents.

) ) ) ) ) ) ) ) ) ) ) )

Case No. 17-75309

PETITION FOR REVIEW

The City of Metrocity (“Metrocity”) petitions this Court for review of the Memorandum

Opinion and Order and Declaratory Ruling of the Federal Communications Commission (the

“Commission” or “FCC”) in the matter captioned In Re WXVI News and City of Metrocity,

Memorandum Opinion and Order and Declaratory Ruling, GN Docket No. 17-90210 (adopted

November 1, 2017, and released November 6, 2017) (“Order”). A copy of the Order is attached.

JURISDICTION AND VENUE

This Petition for Review is filed pursuant to Section 402(a) of the Communications Act

of 1934, as amended, 47 U.S.C. § 151 et seq. (“the Act”), 47 U.S.C. § 402(a). The Court has

jurisdiction over the matters in this case under 28 U.S.C. §§ 2342(1) & 2344. The Order became

final and subject to review upon its publication in the Federal Register on November 30, 2017,

and this Petition is therefore timely under 47 C.F.R. § 1.4(b)(1). This Court is a proper venue

under 28 U.S.C. § 2343.

STANDING

Metrocity participated in the proceeding below and is thus a “party aggrieved by the final

order” under review. 28 U.S.C. § 2342(1).

NATURE OF THE CLAIMS

WXVI News filed an emergency petition and request for declaratory ruling to the

Commission alleging that Metrocity was violating the Act by using a transmitter to broadcast

noise over 5.8 GHz spectrum. WXVI News asserted that the noise emitted from the transmitter

grounded WXVI’s unmanned aerial vehicles (UAVs), which the company uses to report on

current events. WXVI also asserts that Metrocity’s use of the transmitter serves as an illegal

prior restraint on WXVI’s ability to report on matters of public concern.

On November 1, 2017, the FCC adopted the Order finding that Metrocity violated the

Act and the Commission’s jamming rules and, as support for that finding, agreed with WXVI’s

argument that Metrocity violated the First Amendment rights of WXVI to report on matters of

public concern. The FCC erred in making each of these legal conclusions.

First, Metrocity’s decision to create an emergency broadcast channel during a crisis does

not violate the Act nor the Commission’s rules against jamming. The 5.8 GHz spectrum is part

of the ISM spectrum in which interference must be accepted. The Commission’s conclusion that

Metrocity’s interference with WXVI was “intentional” overlooks the fact that Metrocity began

operating the transmitter before ever learning that it interfered with WXVI’s UAVs.

Second, Metrocity did not institute a prior restraint on WXVI’s reporting. WXVI was

able to report on any topic it chose; it simply could not use one particular method of news

investigation. Moreover, Metrocity had a significant interest in setting up and operating an

emergency broadcast channel. The Commission should not have second-guessed Metrocity’s

choice of how to communicate with the public and first responders in an unprecedented crisis.

For these reasons, we respectfully submit that the Commission’s Order errs in

interpretation of the jamming rules and the First Amendment. Accordingly, Metrocity asks that

this Court hold unlawful, set aside, enjoin, annul, and vacate the FCC’s Order.

Respectfully submitted,

Bob Loblaw

By: _/s/__Bob Loblaw______ LOBLAW & ZUCKERKORN PLLC 1000 North Capitol Street, N.E. Washington, DC 20001

Counsel for Petitioner

Dated: November 30, 2017