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June 30, 2021 Columns

Editor’s Column, Summer 2021

By William R. Drexel

As a preliminary matter, on behalf of our entire IRIS organization, I want to thank Cathy McCarthy for her able leadership of our Section this past year during the continued challenges presented by the COVID pandemic. Cathy has led the Section to increase outreach to new members, especially the next generation of regulatory lawyers, and to expand the content and enhance the Section’s value proposition for existing members.

Coping with the COVID challenges has prompted all of us to develop new skills and learn to use new tools. Many of those skills and tools involve communications and media, two of the sectors represented by our Section. It is thus fitting that this last issue under Cathy’s leadership is devoted to significant developments in those areas of our practice. Specifically, this issue of Infrastructure assesses two Supreme Court decisions rendered on April 1 (no joke) that impact virtually every business in our economy.

In our first article, Chris Binnig, Chris Comstock, and Elaine Liu analyze the Supreme Court decision in FCC v. Prometheus. That decision ends almost two decades of attempts by the FCC to fulfill its statutory obligation under the Federal Telecommunications Act to update its media ownership rules to reflect the dramatic changes that have occurred in the media landscape since 1996.

In reversing the Third Circuit, the Court upheld the FCC ownership rule changes that had been repeatedly stymied by the same panel of appellate judges over the past two decades. The authors assess the Court’s analysis and its implications for future attempts by the FCC to reform its media ownership rules as well as the impact of the present ruling on further consolidation in the media sector.

In our second article, Kyle Steinmetz assesses the Telephone Consumer Protection Act (TCPA) decision by the Supreme Court in Facebook v. Duguid. The Supreme Court resolved a split among the circuits involving a technical interpretation of the definition of the TCPA statutory phrase “automatic telephone dialing system.” At issue was whether the equipment involved in calls proscribed by the statute had to both store and produce telephone numbers for the calls using a “random or sequential number generator.” Some Circuits said both storage and production required that number-generation feature to be proscribed, while other circuits held that random or sequential generation is only required for the storage of the number. Interpreting the requirement in the latter fashion would have made virtually every cell phone an automated telephone dialing system. The Court ruled that both the storage and production required the random or sequential number generation for the call to be prohibited. Kyle explains the decision and its impacts on the burgeoning area of TCPA litigation.

We hope you enjoy this issue as well as our associated podcasts. If you have suggested topics for future issues or podcasts or you would like to submit an article for consideration, please contact me at [email protected].

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By William R. Drexel