The U.S. District Court for Middle Pennsylvania in Williamsport should deny defendant Exact Care Pharmacy’s Jan. 29 motion for judgment on the pleadings (see 2401310029), said plaintiff Brenda Everett’s opposition brief Monday (docket 4:23-cv-01649). Everett’s Oct. 4 Telephone Consumer Protection Act class action alleges that Exact Care sends prerecorded messages to individuals’ phone numbers without first obtaining the required express written consent. Exact Care counters that the TCPA was designed to protect individuals from intrusive, unwanted calls, not calls like the one at issue in this case that an individual “requests and then attempts to manipulate into a TCPA claim.” Everett contends that Exact Care represented to her that she was completing a survey to receive more information, but in fact, Exact Care was attempting for Everett to agree to receive automated calls from Exact Care and its marketing partners, said her opposition brief. FCC regulations make clear that duping consumers into agreeing to receive telemarketing calls “was never lawful,” it said. Exact Care also completely ignores the “express written consent” standard it was required to comply with before engaging in telemarketing, it said.
Here are Communications Litigation Today's top stories from last week, in case you missed them. Each can be found by searching on its title or by clicking on the hyperlinked reference number.
Ligado's federal complaint about its planned L-band use "rests in critical parts on a skewed, misleading narrative," satellite and aviation interests told the U.S. Court of Federal Claims Friday in an amicus brief (docket 1:23-cv-1797) backing the government's motion to dismiss Ligado's suit against the U.S., DOD, Commerce and NTIA (see 2401260003). Iridium, Aireon, the Air Line Pilots Association, Airlines for America and the International Air Transport Association said that their concerns about interference from Ligado's plans for a terrestrial L-band network "should inform the Court’s consideration." The concerns about "harmful interference arising from Ligado’s planned terrestrial operations are real and ongoing, not pretextual or resolved," they said. The brief said the U.S. argument that Ligado doesn't have a property interest in its L-band license, and thus the Constitution's takings clause isn't implicated, "is underscored by the fact that Ligado’s license remains subject to substantial contingencies," including ones stemming from multiple reconsideration petitions before the FCC and from the possibility of judicial review if the agency denies the petitions.
A coalition of 21 Republican state attorneys general urged the U.S. Supreme Court to hear Consumers' Research's challenge of the FCC's quarterly USF contribution factor and methodology in an amicus brief posted Thursday (docket 23-743). "Agencies are finding all kinds of creative new ways to grab money and power for themselves lately," the coalition, led by West Virginia AG Patrick Morrisey (R), said. The FCC "extracts billions from American consumers based on a vague statute" and "doesn’t even do the work of setting these rates itself," they argued (see 2401100044). The AGs called the FCC's use of the Universal Service Administrative Co. unconstitutional and a violation of the nondelegation doctrine. "Those that would warn the Court away from reaching these issues are wrong," the group said: "The benefits of the present state of play are overstated." The FCC declined to comment Monday. The agency on Monday petitioned the court to extend until April 3 the March 4 deadline for responding to Consumers' Research's petition, citing a parallel case pending in the U.S. Court of Appeals for the 5th Circuit.
The FCC and DOJ seek a six-day extension, to Feb. 22, to reply to Maurine and Matthew Molaks’ Friday opposition to the commission’s motion to dismiss their petition for review to vacate the agency’s declaratory ruling authorizing E-rate funding for Wi-Fi on school buses (see 2402090048), said the government’s motion Monday (docket 23-60641) at the 5th U.S. Circuit Court of Appeals. The extension is necessary "to allow coordination of the reply between the agencies," it said. Counsel for the Molaks have “represented” that they won’t oppose the extension, it said. The Schools, Health & Libraries Broadband Coalition, an intervenor on behalf of the FCC, supports the extension, it said.
The U.S. Judicial Panel on Multidistrict Litigation, in an order Friday, randomly picked the 8th U.S. Circuit Court of Appeals as the venue in which to consolidate 10 multicircuit petitions for review filed in six appellate courts challenging the FCC’s Nov. 20 digital divide order (see 2402070058), the agency told those courts in notifications Monday, under Panel Rule 25.6. The FCC notified the panel of those 10 petitions Wednesday (see 2402070058). Virtually all the petitioners -- mostly state broadband and television associations, but also the U.S. Chamber of Commerce, are challenging the order on grounds that it gives the FCC unprecedented authority to regulate the broadband internet economy.
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 challenged FCC declaratory ruling authorizing E-rate funding for Wi-Fi on school buses “defies unambiguous statutory limits on the FCC’s authority,” said Maurine and Matthew Molak's opposition Friday (docket 23-60641) to the FCC’s Feb. 6 motion to dismiss their petition for review in which the Molaks ask the 5th U.S. Circuit Court of Appeals to vacate that ruling (see 2402070002).
The Schools, Health and Libraries Broadband Coalition, an intervenor on the FCC’s behalf in opposing the petition for review brought by Maurine and Matt Molak to block the use of E-rate funds for Wi-Fi on school buses (see 2401250002), supports the FCC’s motion to dismiss the Molaks’ case for lack of jurisdiction (see 2402070002), the coalition wrote the 5th U.S. Circuit Court of Appeals in a letter Wednesday (docket 23-60641). The Molaks weren't part of the proceedings before the FCC to use E-rate funds for school bus Wi-Fi, and the commission argued that participation was “a condition precedent” to judicial review under the Communications Act, plus “a jurisdictional requirement” under the Hobbs Act.
In light of the FCC’s notice Wednesday to the U.S. Judicial Panel on Multidistrict Litigation that 10 petitions for review are pending in six appellate courts, all challenging the commission’s Nov. 20 digital divide order (see 2402070058), the 8th U.S. Circuit Court of Appeals will hold the two petitions under its watch in abeyance, said its two separate orders Thursday. The petitions are from the Minnesota Telecom Alliance (docket 24-1179) and the Missouri Internet & Television Association (docket 24-1183). The cases will be held in abeyance pending further order from the panel, said the orders.