The Judicial Panel on Multidistrict Litigation randomly picked the 6th U.S. Court of Appeals to consolidate a pair of petitions for review that challenge the FCC’s Dec. 21 report and order updating the commission’s data breach notification requirements, said its consolidation order Monday (docket MCP No. 178). The Ohio Telecom Association filed its petition Feb. 20 in the 6th Circuit (see 2402210026), and the Texas Association of Business did so two days later in the 5th Circuit (see 2402230024). Both petitions seek review on grounds that the updated data breach notification rules exceed the FCC’s statutory authority.
The legal battle over the FCC’s 2018 quadrennial review order appears headed to the 8th U.S. Circuit Court of Appeals. The Judicial Panel on Multidistrict Litigation randomly selected that circuit from the three where petitions for review were filed, said a consolidation order Tuesday (see 2402250001). The 8th Circuit was the venue for an appeal filed by Zimmer Radio. The other possible circuits in the lottery were the 5th and 11th, where appeals were filed by Nexstar and Beasley Media, respectively. All previous QR challenges were decided by a panel in the 3rd Circuit, but after a 2018 U.S. Supreme Court decision, that panel no longer has jurisdiction in the matter. The 5th, 8th and 11th circuits are seen as having conservative leanings, while the 3rd Circuit is considered more favorable to parties seeking to uphold regulations. Parties in the case could still seek to have it moved to a different circuit, but attorneys familiar with appellate procedure told us that rarely occurs. With the circuit for the case decided, it's likely that more challenges to the order will be filed, including an anticipated one from NAB, attorneys told us. Only circuits where appeals were filed in the 10 days after the order appeared in the Federal Register are added to the Judicial Panel on Multidistrict Litigation’s lottery.
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The U.S. Supreme Court should reject Ambassador Animal Hospital's Nov. 20 cert petition to reverse the 7th U.S. Circuit Court of Appeals decision affirming the district court’s dismissal of Ambassador’s Telephone Consumer Protection Act complaint, said respondent Elanco’s brief Friday (docket 23-552) in opposition to the petition.
Liberty Mutual violates the Telephone Consumer Protection Act by placing unwanted solicitation calls to consumers’ residential phone numbers that are listed on the national do not call registry, alleged Adam Ward’s class action Friday (docket 1:24-cv-10526) in U.S. District Court for Massachusetts in Boston. The Cocoa, Florida, resident listed his number on the national DNC registry in August 2005 “to afford himself the protections” against “invasive and irritating telemarketing calls,” said his complaint. But Liberty Mutual nevertheless engaged in a telemarketing campaign directed toward Ward “in furtherance of its efforts to sell him an insurance policy he did not want or need,” it said. Ward didn’t provide express written consent or any consent for the company’s solicitation calls and texts, it said. Before the telemarketing campaign, the plaintiff didn’t have any established business relationship with Liberty Mutual, it said, saying he received a total of seven calls and text messages from the company. He experienced “frustration, annoyance, irritation and a sense that his privacy has been invaded,” said his complaint. Without having had the benefit of discovery to show otherwise, Ward alleges Liberty Mutual “is directly liable" for the unsolicited calls and text messages at issue because they were placed or made directly by the company, it said. Alternatively, if discovery reveals that some or all of the calls or text messages were made by third parties on Liberty Mutual’s behalf, then Liberty Mutual is vicariously liable for those calls or texts, it said. The FCC’s May 2013 declaratory ruling determined that hiring a vendor that engages in TCPA wrongdoing “was not a basis for avoiding liability,” it said. The FCC ruling “rejected a narrow view of TCPA liability, including the assertion that a seller’s liability requires a finding of formal actual agency and immediate direction and control over third parties who place a telemarketing call,” said the complaint. Liberty Mutual may have hired, encouraged, permitted and enjoyed the benefits of mass telemarketing by third-party telemarketers that are currently unknown to Ward and only known to Liberty Mutual, it said. The company “ratified its agents’ violations of the TCPA by accepting leads and deriving profit from sales imitated by unlawful robocalls,” the complaint said.
Communications Litigation Today is tracking the below lawsuits involving appeals of FCC actions. Cases marked with an * were terminated since the last update. Cases in bold are new since the last update.
The U.S. government will seek dismissal of Vermont National Telephone (VTEL) litigation against Dish Network designated entities (DE) Northstar Wireless and SNR Wireless over allegations of fraud in the 2015 AWS-3 auction. The U.S. is the relator in the VTEL litigation. DOJ filed a notice of intent to intervene and dismiss Friday with the U.S. District Court for the District of Columbia (docket 1:15-cv-00728). It hasn't said in court filings the reasoning behind its move to get the case dismissed, and didn't comment Monday. The U.S. Court of Appeals for the D.C. Circuit in 2022 reversed the lower court's dismissal of VTEL's False Claims Act suit against the Dish DEs and remanded it to the D.C. District Court (see 2205170026).
Parties to the 14 petitions for review challenging the FCC’s Nov. 20 digital discrimination order now consolidated in the 8th U.S. Circuit Court of Appeals (see 2402120077) should meet, confer and submit a joint proposed briefing schedule within 30 days, clerk of court Michael Gans wrote counsel for the various parties Wednesday. The proposed briefing schedule “should either provide for briefing to be complete, and the cases ready for submission on the merits,” before the end of calendar 2024, or include an explanation “why the parties believe such a schedule is not reasonably attainable,” his letter said. In his initial review of the petitions, Gans “has preliminarily identified two groups of petitioners, with the members of each group appearing to challenge the agency action in one of two different respects,” it said, without specificity. He thus anticipates that the consolidated cases “will be broken into two tracks, with each of the two groups briefing their respective issues separately, before the cases are ultimately argued and submitted together to the same panel of judges on the same day,” it said. He asked that the proposed briefing schedule “indicate whether the parties agree with the clerk’s preliminary assessment that two separate tracks are warranted.” Gans also asked whether the petitioners intend to submit separate opening briefs, a single consolidated opening brief, or two consolidated opening briefs, “one from each preliminarily identified group of petitioners.”
The Wireless ISP Association petitioned the U.S. Court of Appeals for the D.C. Circuit for review of the FCC’s Nov. 20 digital discrimination order on grounds that it’s contrary to law, an abuse of discretion and violates the Administrative Procedure Act, said the petition Wednesday (docket 24-1047). It becomes the 15th such petition consolidated in the 8th Circuit once it’s transferred there under the Judicial Panel on Multidistrict Litigation's Feb. 9 order (see 2402120077). The order “undermines” congressional intent “by diverting limited human resources and investment from deployment to compliance with burdensome and overbroad regulations,” said the petition. It imposes a novel disparate-impact test that allows the FCC “to micromanage a host of legitimate business practices, including network buildout decisions, pricing, promotions, advertising, contract renewal, and customer service,” it said. If the order is allowed to stand, the FCC could enforce it “with its full range of tools, including civil penalties,” it said. The order “will deter innovation and investment in broadband,” including among WISPA’s small and rural members who may lack adequate resources to “absorb” the order’s compliance and potential enforcement costs, it said.
Tegna promotes Tom Cox to chief growth officer, newly created position, and elevates Daniel Spinosa to replace Cox as president of Premion, Tegna’s over-the-top advertising platform ... Nielsen hires Nicolina Marzicola, ex-HP, as chief people officer ... Jonathan Schwantes announces he has left Consumer Reports to become Microsoft director-congressional affairs … FCC Chairwoman Jessica Rosenworcel announces composition of Technological Advisory Council, including Dean Brenner, former executive at Qualcomm, as chairman, and names Martin Doczkat, chief of the Office of Engineering and Technology's Electromagnetic Compatibility Division, as designated federal officer and Sean Yun, that division’s deputy chief, as the alternate designated federal officer … Qurate Retail Group promotes Stacy Bowe to HSN president, effective immediately, replacing Rob Muller, departing HSN, but remaining an adviser through April ... Mundial Media, minority-owned marketing platform specializing in multicultural audiences, adds Qiana Patterson, managing partner at venture studio Nayah, and Ryan Klinefelter, managing director at venture capital firm Hidden River, to its advisory board ... Enterprise video platform SundaySky hires Synacor’s Marc Zionts as CEO.