Today’s Opinions: FCC Data Roaming Rule and NLRB Discovery Order Upheld

Judge Tatel published two majority opinions this morning. 

In Cellco Partnership v. FCC, the Court unanimously upheld the Commission’s data roaming rule, which requires mobile-data providers to offer roaming agreements to their competitors on “commercially reasonable terms”:

Title III of the Communications Act of 1934 plainly empowers the Commission to promulgate the data roaming rule.  And although the rule bears some marks of common carriage, we defer to the Commission’s determination that the rule imposes no common carrier obligations on mobile-internet providers. In response to Verizon’s remaining  arguments, we conclude that the rule does not effect an unconstitutional taking and is neither arbitrary nor capricious.

In KLB Industries v. NLRB, over Judge Henderson’s dissent, the Court upheld the Board’s decision that a union was entitled to information from the employer about the competitive pressures the employer asserted to justify the substantial wage concessions it sought during collective bargaining.

On the one hand, . . . a competitive disadvantage claim is insufficient, by itself, to obligate a company to open its books. On the other hand, the Board’s discovery line of cases endorses a relevancy-based, pro-disclosure standard that allows a union to request specific information to verify a company’s stated position, including competitiveness claims. . . . [W]here, as here, an employer raises a competitiveness claim as its central justification for wage concessions, a union is entitled to information verifying that claim.

Cellco Partnership v. FCCNo. 11-1135 (Dec. 4, 2012) (Tatel, J., joined by Garland & Griffith, JJ.)

KLB Industries v. NLRB, No. 11-1280 (Dec. 4, 2012) (Tatel, J., joined by Rogers, J., with Henderson, J., dissenting)

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