Duke Energy and AT&T are requesting that their consolidated pole attachment appeals against the FCC be voluntarily dismissed under Rule 42(b) of the Federal Rules of Appellate Procedure, said their unopposed joint motion Friday (dockets 22-2220 and 23-1010) at the 4th U.S. Circuit Court of Appeals. Oral argument is scheduled for Jan. 24 (see 2312040040), but Duke and AT&T have reached a settlement that resolves their dispute and they have agreed to jointly dismiss their respective challenges to the FCC’s November 2022 order “at issue in these consolidated appeals,” said the motion. The agency has “represented” that it doesn’t oppose the motion, it said. The order determined that AT&T should pay a pole attachment rate that’s lower than that of its joint use agreement with Duke but higher than the rate paid by other companies that attach their lines to Duke’s poles (see 2309050005). It also ordered Duke to refund AT&T the difference between the rate in the joint use agreement and what the commission found to be the “just and reasonable rate” for the period covered by a three-year statute of limitations.
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.
Sukhdev Dhillon “unlawfully appropriated” the Radio Punjab mark and told radio listeners and advertisers in California and Washington he was operating “the ‘real’ Radio Punjab,” creating “confusion in the radio marketplace,” alleged a trademark infringement complaint Friday (docket 1:24-at-00017) in U.S. District Court for Eastern California in Fresno.
Plaintiffs Kimberly Hudson and Julius Bryant filed suit Thursday against healthcare insurance company SPI Holdings “to protect their privacy rights, namely the right to be left alone from unwanted telemarketing phone calls,” said their Telephone Consumer Protection Act complaint (docket 4:24-cv-00030) in U.S. District Court for Southern Texas in Houston. Hudson owns two cellphones for her private, residential use. She listed both her numbers on the national do not call registry at least as early as July 2003, said the complaint. Bryant listed his residential cellphone on the DNC registry in March 2019, it said. Yet SPI or someone acting on its behalf placed 52 telemarketing calls to Hudson and Bryant collectively, alleges their complaint. Without the benefit of discovery, the Arlington, Texas, residents “assume SPI directly placed the calls at issue,” it said. If SPI directly placed those calls, SPI is “directly liable for those calls,” it said. But if discovery reveals that some or all of the calls were made by third parties on SPI’s behalf, then SPI is still at least “vicariously liable for those calls,” it said. The FCC’s May 2013 declaratory ruling “rejected a narrow view of TCPA liability,” said the complaint. It includes 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,” it said. SPI’s third-party telemarketers “had actual and/or apparent authority to act” on SPI’s behalf, it said. “SPI also ratified its agents’ violations of the TCPA by accepting leads and deriving profit from sales imitated by unlawful telemarketing calls,” it said. SPI controlled or had the right to control the marketing activities of those acting on its behalf, it said. SPI isn’t permitted under the law “to outsource and contract its way out of liability by directing and benefitting from its agents’ TCPA violations,” it said.
The FCC asked the 5th U.S. Circuit Court of Appeals to hold Consumers' Research's challenge of the Q1 2024 USF contribution factor in abeyance until a separate challenge the group filed is decided (see 2401030069), said the commission's motion Friday (docket 24-60006). Consumers' Research previously challenged the Q1 2022 contribution factor, which the court heard en banc in September (see 2309190072). "Because these cases involve the same parties and the same legal issues, it would best serve the interest of judicial economy and efficiency for the court to hold this case in abeyance until it issues a ruling" in the earlier case, the FCC said.
FCC Commissioner Brendan Carr announces Arpan Sura, from the Wireless Bureau, as his legal adviser … 5G Americas elects Ulf Ewaldsson, T-Mobile US president-technology, as board chairman … Brent Skorup announces he has left George Mason University's Mercatus Center to become a research fellow at the Cato Institute's Levy Center for Constitutional Studies … Pierson Ferdinand, tech-focused law firm, launches, with more than 130 partners representing 80-plus practices areas, including partners, all from FisherBroyles: Rachel Huffstetler and Keats Quinalty, both intellectual property; Adam Ettinger, chief technology officer; Vincent Bushnell, cyber risk, privacy and data Security; Je d Davis, Charles Geitner and Dan McGuire, cybersecurity and privacy; Maryam Meseha, cybersecurity and data protection; and Tony Onorato, cybersecurity, cyber risk and data breach ... Vislink appoints Christopher DeSalvo, ex-Paychex, as chief financial officer-vice president, operations ... Fox News Media promotes Scott Wilder to executive vice president-production and operations ... NetApp names Commvault’s Riccardo Di Blasio senior vice president-North America sales ... Intel hires Justin Hotard from Hewlett Packard Enterprise as executive vice president-general manager, Data Center and AI Group, and adds him to its executive leadership team, effective Feb. 1.
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.
ACA Connects hires three vice presidents: Zamir Ahmed, ex-NAB, for external affairs; Olivia Shields, ex-House Commerce Committee, public affairs and communications; and Max Staloff, ex-Jenner & Block and former FCC, for regulatory affairs … USTelecom appoints Keller and Heckman’s Kathleen Slattery Thompson as vice president-policy and advocacy … Akin promotes intellectual property lawyer David Lee to partner … Troutman Pepper Names patent and IP partner Tate Tischner as managing partner, Rochester office … Former Lawler Metzger partner Jim Falvey announces opening of The Law Office of James C. Falvey, representing fiber infrastructure and other telecom providers ... Carbyne, tech provider for emergency response call management, appoints Chris Hill, ex-Synchronoss Technologies, as chief operating officer … Secure Technology Alliance’s Identity and Access Forum announces its first steering committee, including Chair Teresa Wu, Idemia; Vice Chair Rajan Barara, Entrust; Secretary Sruti Jain, Consult Hyperion; and Treasurer Jatin Deshpande, Giesecke+Devrient … Edge-computing platform Edgio promotes Chief Revenue Officer Todd Hinders to CEO, replacing Bob Lyons, who left his roles as president-CEO and as a member of the board ... Sovrn, tech platform for online publishers, hires Criteo’s Isaac Schechtman as vice president-product, Ad Exchange.
The U.S. Court of Appeals for the D.C. Circuit accepted the FCC’s 2018 quadrennial review order and dismissed NAB’s petition for a writ of mandamus as moot, a discharge order Tuesday said (docket 23-1120). NAB had asked the court to compel the FCC to act on the 2018 QR. Both NAB and the FCC requested the dismissal after the agency issued the 2018 QR one day before the court’s Dec. 27 deadline.
Consumers' Research filed a new challenge of the FCC's Q1 2024 USF contribution factor in the 5th U.S. Circuit Court of Appeals Wednesday. It's the third time the group challenged a contribution factor with this court (see 2310030069). The contribution methodology and ultimate quarterly factor "exceed the FCC's statutory authority" and violate the nondelegation doctrine, the group said in its petition for review (docket 24-60006).