Hikvision Sues USA, FCC

Hikvision is suing the FCC and the United States of America. It seeks to overturn the FCC's national security ban on future equipment authorizations.

Precedent for such lawsuits exist, e.g., Huawei lost lawsuits both over the NDAA and FCC bans.

In this report, we examine the suit and Hikvision's arguments.

On February 13, 2023, Hikvision filed a Petition for Review with the US Court of Appeals for the District of Columbia, Hikvision USA, Inc. v. Federal Communications Commission and United States of America.

On November 11, 2022, the FCC voted to ban equipment authorizations for five "covered entities," including Hikvision and Dahua, on national security grounds per in September 2021. The order effectively banned the sale of any future products in the United States.

The petition requests the Court overturn the FCC's authorizations ban, and "grant such further relief as may be appropriate." Hikvision argues the FCC order exceeded jurisdiction, is unconstitutional and is arbitrary and capricious:

Hikvision seeks review on the grounds that the Order exceeds the FCC’s jurisdiction and its statutory authority; violates the Equal Protection and Bill of Attainder Clauses of the United States Constitution; violates the Communications Act and the Administrative Procedure Act; and is arbitrary and capricious, an abuse of discretion, not supported by substantial evidence, and otherwise contrary to law.

In the 6-page filing, Hikvision did not present many details, but it made these same arguments in several FCC comments and we expect that Hikvision will submit additional filings.

The FCC has not yet responded to Hikvision in court as the filing was just made this week. However, in its November order, the FCC addressed Hikvision's claims, stating that the action was within its authority:

We first find that the Commission has clear legal authority, as underscored by the Secure Equipment Act, for modifying the Commission’s equipment authorization program to prohibit authorization. [emphasis added]

The FCC also found it was not unconstitutional, and not arbitrary and capricious:

We are unpersuaded by certain constitutional objections raised by Huawei Cos., Hikvision USA, and Dahua USA. Consequently, these arguments provide no basis for undercutting our decision to adopt new equipment authorization rules in this Report and Order...

We reject the arguments of Hikvision USA and Dahua USA that the Commission’s actions in this proceeding are arbitrary and capricious. [emphasis added]

In the document, Hikvision noted it served the suit to US Attorney General Merrick Garland, and the FCC General Counsel P. Michele Ellison:

Outlook

Generally-speaking, a Federal appellate court can take months or years to issue a decision. However, there is no impact on the FCC's ban, which took effect on February 7, 2023 until and unless the Court rules in Hikvision's favor.

Given similar litigation from Huawei that lost plus deepening security concerns with the PRC, Hikvision's case will be challenging.

Benefits for Hikvision Short Term

Win or lose, Hikvision benefits in the short term in the USA as it can tell its dealers that it is suing the government. For example, Hikvision touted its recent USA Sales Kickoff as "#heretostay":

Comment from Hikvision

We reached out to Hikvision for comment and will update this report when and if we receive a response.

Potential Dahua Suit

IPVM received an alert for another case, Dahua Technology USA, Inc. v. Federal Communications Commission. However, our case management software stated that "this case can no longer be found in the court's system":

We subsequently checked the 9th Circuit's cases and no case was returned. The 9th Circuit covers the US West Coast while the DC Circuit court is where Hikvision filed its suit. It is possible that this was a clerical error and Dahua will subsequently file in DC.

Last month, Dahua told the FCC that it plans to submit a prohibited purpose plan.

We reached out to Dahua asking for comment and will update if / when they respond (or when we find a new filing in the US court system).