U.S. District Judge Michael Watson for Southern Ohio in Columbus reserved ruling in part and denied in part Vivek Ramaswamy’s March 21 and April 1 motions to dismiss Thomas Grant’s Telephone Consumer Protection Act complaint, said the judge’s signed opinion and order Friday (docket 2:24-cv-00281).
U.S. District Judge Cindy Jorgenson for Arizona denied a motion to dismiss the robocalling complaint brought in May 2023 by the attorneys general of 48 states and the District of Columbia (see 2305230069), said the judge’s signed order Wednesday (docket 4:23-cv-00233). Defendants Michael Lansky, his company Avid Telecom and Stacey Reeves, Avid’s vice president-operations and sales, filed the motion. The judge also denied their motion to stay the case and refer the AGs’ claims to the FCC and FTC for expert review, said her Wednesday order. Jorgenson granted the plaintiffs leave to file an amended complaint within 14 days “to state an alter ego claim of individual liability” against defendant Lansky. Should the plaintiffs not amend their complaint, the defendants will have until June 14 to file an answer, said the order. The judge found there’s no merit to the defendants’ argument that as a matter of law, the plaintiffs’ TCPA claims fail because Avid can’t be found to have ever initiated any calls covered by the TCPA, it said. The defendants also provide no contrary law to that relied on by the plaintiffs, it said. The state AGs allege that Avid, Lansky and Reeves violated the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Telemarketing Sales Rule, the Telephone Consumer Protection Act and state laws in 11 states in facilitating billions of illegal robocalls for years via the company's VoIP services. They allege that Avid received more than 329 notifications from USTelecom's Industry Traceback Group, putting it on notice that it was transmitting illegal robocalls. They also allege that Avid, Lansky and Reeves "knew or consciously avoided knowing they were routing illegal robocall traffic." Robocalls are a "scourge,” said North Carolina AG Josh Stein (D) in a statement Thursday, one of the few AGs to weigh in on the judge's denial of the motion to dismiss. “I’m pleased the court agreed that the defendants’ attempt to dismiss the case was baseless," he said.
LTD Broadband asked the U.S. Court of Appeals for the D.C. Circuit Wednesday to overturn the FCC's denial of its Rural Digital Opportunity Fund Phase (RDOF) I auction long-form application. It filed a partially redacted petition (docket 24-1017). LTD was the largest RDOF winner, receiving an award of roughly $1.3 billion to deploy broadband to 528,088 locations across more than a dozen states (see 2012070039).
The Universal Service Administrative Co. owes Data Research Corp. (DRC) $9.9 million, plus interest, for broadband services it provided more than 20 years ago to the Puerto Rico Department of Education (PRDOE) under the federal E-rate program, DRC's complaint Wednesday alleges (docket 3:24-cv-01211) in U.S. District Court for Puerto Rico in San Juan.
The FCC’s digital discrimination broadband order “is illegal on at least three grounds,” the Pacific Legal Foundation and the Washington Legal Foundation said in an 8th U.S. Circuit Appeals Court amicus brief Tuesday (docket 24-1179). The brief supports the 20 industry petitioners that seek to vacate the order as unlawful (see 2404230032). When Congress grants lawmaking authority to a federal agency, it must lay down by legislative act an intelligible principle to which the agency can conform, according to the brief. Section 60506 of the Infrastructure Investment and Jobs Act directs the FCC to adopt rules that facilitate equal access to broadband, including by preventing digital discrimination of access based on income level, race, ethnicity, color, religion or national origin, it said. The industry petitioners “persuasively explain” that Section 60506's language doesn’t permit the FCC to implement disparate impact liability, it said. But if it did, then that language violates the nondelegation doctrine by failing to provide an intelligible principle governing such liability, it said. “Virtually any action that a regulated entity can take will have a disparate impact along one or more dimensions of income level, race, ethnicity, color, or religion,” said the brief. That’s especially true because of the inclusion of income level, “which means that any decision by a covered entity lowering or raising prices will have a disparate impact based on income and thus come within the FCC’s enforcement authority,” it said. The authority to promulgate disparate impact rules “is a major question to which Congress is required to speak clearly,” it said. Because Congress didn’t speak “clearly to this particular question” in the statute, the FCC’s order is “invalid,” it said. The order also requires covered entities to “treat people differently based on race, in violation of the constitutional guarantee of equal protection,” it said.
Thomas Grant’s April 22 opposition to former GOP presidential candidate Vivek Ramaswamy’s motion to dismiss (see 2404230005) “fails to bring sufficient facts to bear to create a reasonable inference” that Ramaswamy was personally liable for the campaign calls to Grant’s phone, said the defendant’s reply Monday (docket 2:24-cv-00281) in U.S. District Court for Southern Ohio in Columbus in support of his motion to dismiss. Grant’s Telephone Consumer Protection Act complaint alleges Ramaswamy’s campaign, Vivek 2024, which was suspended Jan. 15, placed calls with the candidate's prerecorded voice to consumers’ cellphones to promote the candidate’s telephonic town hall events. But the plaintiff’s inability “to connect the factual dots” between Ramaswamy and the campaign’s third-party phone vendors isn’t surprising, said Ramaswamy’s reply. It’s a function of his failing to bring suit against the correct party, the Vivek 2024 campaign, it said. Grant consequently “is forced to lean on conclusory allegations” to prop up his complaint, it said. Unfortunately for Grant, “simply including conclusory allegations you hope to be true, without more, is insufficient,” it said. The plaintiff also fails to rebut Ramswamy’s reliance on the regulatory exemptions to the TCPA, it said. Grant specifically contends that the exemption containing the phrase “residential phone line” can’t possibly apply to cellphones, “despite failing to cite a single case” in the 6th U.S. Circuit Court of Appeals “that says as much,” it said. Put differently, Grant lobbies for a “hard bifurcation” between residential phone numbers and cellphone numbers. But in light of the FCC’s “nuanced understanding” of privacy concerns, it’s, at best, “an open question as to whether the residential exemption also applies” to cellphones when those numbers are used primarily for personal, not commercial purposes, it said. Those same privacy concerns are the very basis for the FCC’s willingness to extend the do not call registry for residential lines to wireless phone lines, it said. “The situation is no different here,” said the reply. “The calls at issue are, therefore, exempted under the TCPA,” it said.
The FCC's ongoing, contested L-band regulatory proceeding is the proper place for addressing Ligado's concerns regarding its use of the spectrum, especially as the FCC could provide Ligado with adequate relief, DOJ told the U.S. Court of Federal Claims Monday. In a docket in support of the defendant U.S. government's motion to dismiss, Justice said FCC licenses aren't property for purposes of the takings clause, and Ligado hasn't pleaded an authorized taking of its license anyway. DOJ said Ligado's "grab-bag of takings theories" is rife with deficiencies. Ligado is alleging its L-band rights, worth tens of billions, were rendered valueless by U.S. taking of Ligado's property (see 2310130003). The U.S. is seeking dismissal (see 2401260003). DOJ on Monday said that Ligado is ignoring that the FCC's 2020 Ligado order faces eight reconsideration petitions that are pending. It said Ligado is asking the federal court to usurp FCC decision-making and the judicial review process "by depriving the FCC of the opportunity to adjudicate any takings claims and by awarding Ligado billions in compensation for the alleged taking of supposed property -- the modified license -- that the FCC or court of appeals may later abrogate."
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.
Adell Broadcasting will bring legal action against Nexstar and Mission Broadcasting if Mission doesn’t accept the FCC’s conditions for approving Mission’s proposed $75 million buy of Adell’s WADL Mount Clemens, Michigan (see 2404240070), Adell CEO Kevin Adell told us in an interview Tuesday.
The Universal Service Administrative Co's. (USAC) role in administering the FCC's Universal Service Fund programs "is purely administrative," the FCC told the U.S. Supreme Court in response to Consumers' Research's challenge of how the commission determines quarterly contribution factors (see 2401100044). USAC "must comply with detailed regulations issued by the FCC" and "helps the FCC compute the amount of each quarterly payment" carriers must contribute, the agency said in an opposition brief filed in docket 23-456.