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.
Coastal TV is being forced to broadcast with a low-power transmitter that lacks sufficient power to cover its broadcast area due to a contract dispute with Mississippi TV, alleged a May 1 fraud complaint (docket 1:24-cv-00100), removed Tuesday from the Circuit Court of Lee County, Mississippi, to U.S. District Court for Northern Mississippi in Aberdeen.
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.
Radio Communication Corp. “fundamentally misreads the statutory scheme” and is “simply mistaken” in its challenges to the FCC’s implementation of the 2023 Low Power Protection Act (LPPA) (see 2404230058), said the agency's respondent brief Wednesday (docket 24-1004) in the U.S. Court of Appeals for the D.C. Circuit. “It is well within Congress’s power to regulate local television broadcasting,” said the brief. RCC's arguments that the FCC’s rules governing which low-power TV stations can upgrade to Class A status violate the First Amendment or discourage cable carriage of LPTV stations are “entirely beside the point,” because RCC is located in too large a market and so “ineligible for Class A status under the plain text” of the LPPA, the FCC said. The agency “correctly interpreted the statutory requirement that an eligible station ‘operate in a Designated Market Area with not more than 95,000 television households’ to mean that an eligible station must be located within a Designated Market Area that has no more than 95,000 television households,” the filing said. RCC is in a DMA with more than 95,000 TV households, so “that conclusion resolves this case,” the FCC said. “RCC’s various policy objections, its strained reading of the Communications Act, and its tenuous constitutional theories cannot change its ineligibility.”
The FCC’s updated data breach notification rule, adopted Dec. 13, released Dec. 21 and published in the Federal Register Feb. 12, is a “brazen effort to claim regulatory authority” that Congress declined to confer under the Communications Act, but also “specifically rejected” under the Congressional Review Act (CRA), said the consolidated opening brief Wednesday in the 6th U.S. Circuit Appeals Court of five petitioners that seek to invalidate the rule (see 2402210026).
Steven Kern’s class action seeks to reverse “a disturbing trend” whereby real estate agents cold-call consumers without consent, in violation of the Telephone Consumer Protection Act, said Kern’s complaint Tuesday (docket 2:24-cv-04207) in U.S. District Court for Central California in Los Angeles. Kern alleges that Sasha Rahban, a Los Angeles real estate agent, places calls to consumers using a prerecorded voice message without the consumers’ prior written consent to receive such calls, said his class action. As a result, Los Angeles resident Kern seeks injunctive and monetary relief “for all persons injured by Rahban’s telemarketing calls,” it said. As explained in the FCC’s February 2012 order, the TCPA requires prior express written consent for all autodialed or prerecorded solicitation calls to wireless numbers and residential phone lines, said the complaint. Yet in violation of that rule, Rahban “fails to obtain any express written consent” before placing his prerecorded voice calls to cellphone numbers such as Kern’s, it said. The plaintiff received one such unsolicited call to his cellphone April 26 from Rahban or on Rahban’s behalf, said the complaint. Kern didn’t answer the call, but a prerecorded voicemail was left inquiring whether he was in the market to sell his home, it said. Kern never consented to receiving solicitation calls from the defendant, nor was he looking to sell his home, it said. The unauthorized voicemail that Rahban or someone on his behalf left with Kern harmed the plaintiff “in the form of annoyance, nuisance, and invasion of privacy, and disturbed the use and enjoyment of his phone,” it said.
Petitioners iFixit, Public Resource and Make Community “seek to dramatically rewrite federal law and agency rules by destroying the copyright” to the standards development organizations’ standards, said 17 SDOs in an amicus brief Tuesday (docket 23-1311) in the U.S. Appeals Court for the D.C. Circuit in support of the FCC.
Consumers' Research defended its position Tuesday to the U.S. Supreme Court that Congress and the FCC violated the nondelegation doctrine through the Universal Service Fund contributions mechanism (see 2405070042).
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.
Twilio, a cloud communications company, “essentially bridges the gap between web-based applications and the telephone network,” but in so doing, it has been originating “illegal robocall traffic” for years, alleged Michael Anthony’s Telephone Consumer Protection Act complaint Friday (docket 3:24-cv-02999) in U.S. District Court for Northern California in San Francisco. Twilio has initiated hundreds of calls to Anthony’s cellphone, in violation of the TCPA, alleged his complaint. Though Anthony notified Twilio “countless times” that he listed his cellphone with the national do not call registry in May 2004, Twilio “continually harassed him by transmitting unlawful text messages and making illegal call after illegal call,” it said. The FCC in January 2023 determined that Twilio was originating illegal robocall traffic on behalf of one or more of its clients, it said. In its cease-and-desist letter, the FCC “mandated that Twilio take steps to address the illegal traffic, and take steps to prevent Twilio’s network from continuing to be a source of illegal robocalls,” it said. The FCC gave the company the “potentially devastating ultimatum” that failure to comply with the commission’s corrective measures “may result in downstream voice service providers blocking all of Twilio’s traffic, permanently,” it said. Twilio nevertheless refuses to implement a systemwide block to Anthony’s cellphone and continued to transmit, countless unlawful telemarketing calls and text messages to his cellphone, said his complaint. For example, in 2022, the Pennsylvania resident received prerecorded calls and text messages from a company called Fulcrum Home Solutions, but without his consent, it said. Anthony contacted Fulcrum, which “expressly identified Twilio as the service being used to generate prerecorded calls in violation of the TCPA,” it said. Despite the plaintiff bringing this to Twilio’s attention, the company “kept inundating him with unsolicited calls and text messages,” it said. Twilio acknowledges in its public filings with the SEC that its platform technology allows mass text messaging campaigns that violate the TCPA, said the complaint. Twilio’s October 2016 S-1 filing said that the company faces a risk of litigation resulting from “customer misuse” of its software to send unauthorized text messages in violation of the TCPA: “If we do not comply with these laws or regulations or if we become liable under these laws or regulations due to the failure of our customers to comply with these laws by obtaining proper consent, we could face direct liability.” Twilio knew its application program interface and its servers “were being used to violate the TCPA and, indeed, aided in the misuse of its API and servers,” as Anthony “continually notified Twilio of its malfeasance,” said the complaint. The defendant’s conduct “violates several sections of the TCPA,” it said. Anthony suffered injuries and is entitled to a minimum of $500 in damages for each violation of the TCPA, and up to $1,500 if Twilio’s violations are determined to be “knowing or willful,” it said.