The U.S. District Court for Eastern Kentucky delayed a trial that was scheduled for Jan. 30 in CTIA v. Kentucky 911 Services Board (case 3:20-cv-00043). The parties filed dispositive motions that could resolve the case, said Magistrate Judge Edward Atkins in a Wednesday order. “The previously scheduled trial and pending pretrial deadlines in this matter are continued pending the resolution of the parties’ dispositive motions.” In October, DOJ urged the district court to reject the state's constitutional challenges to the 2018 Wireless Telecommunications Tax and Fee Collection Fairness Act and the 1934 Communications Act.

The Nov. 30 opinion and order where U.S. District Judge Donald Molloy for Montana in Missoula granted the plaintiffs in two consolidated cases (dockets 9:23-cv-00056 and 9:23-cv-00061) a preliminary injunction against a statewide TikTok ban (see 2312010003) was “a victory for TikTok and the individual plaintiffs,” Pillsbury senior associate Jon Jekel said in an analysis Monday. The case “will also be celebrated by free speech advocates, as multiple organizations filed amicus briefs in support of the injunction,” said Jekel. “It comes at a time when legislatures and the judiciary are weighing how to regulate social media companies,” he said. The ruling against Montana’s legislation “is a crucial development in the ongoing legal battles surrounding social media, digital privacy, and state versus federal powers,” said Jekel. As the U.S. Supreme Court prepares to weigh in on related cases, “the legal community and digital platforms alike await with keen interest to see how these evolving issues will shape the future of online communication and governance,” he said.

Online sleep and loungewear retailer Eberjey on Monday removed to U.S. District Court for Southern Florida in Fort Lauderdale an Oct. 26 class action filed in the 17th Judicial Circuit Court in Broward County in which plaintiff Axel Bilbao alleges Eberjey violated the caller ID rules of the Florida Telephone Solicitation Act. Bilbao alleges Eberjey sent him multiple text messages promoting its products, said Eberjey’s notice of removal (docket 0:23-cv-62308). The text messages transmitted the short code 45987 but didn’t transmit to Bilbao’s cellphone caller ID phone numbers “that were capable of receiving telephone calls or that could connect him to Eberjey,” it said. Bilbao also alleges that when he received one such text message from Eberjey, he tried to call the short code by dialing 45987, but the call couldn’t be completed as dialed. Bilbao also alleges he tried to text Eberjey by sending a couple of questions by text messages but received only automated “non-responsive responses,” it said. Eberjey “expressly denies” Bilbao’s allegations and denies that he or any putative class members “have any valid claim,” said the notice of removal. The caller ID rules “are a critical provision of the FTSA,” said Bilbao’s complaint. The rules are designed to ensure that when telephone sales calls are made, the phone number transmitted to the recipient’s caller ID service can be viewed and called back by the consumer, it said. “The importance and purpose of these protections is unmistakable,” it said. Violations of the caller ID rules can’t be “remedied” by the cessation of the telephone sales calls themselves, and can’t be “consented to or waived” by the call recipients, it said.

A federal court won’t preliminarily enjoin a California Public Utilities Commission order related to rural local exchange carrier (RLEC) ratesetting. Despite finding that Sierra Telephone failed to show likelihood of success on the merits, the U.S. District Court for Eastern California in Sacramento allowed the RLEC to file an amended complaint within 30 days of the Nov. 27 order (docket 1:23-cv-01143). Sierra challenged a CPUC "broadband imputation" policy that attributes ISP affiliates' revenue to the affiliate telephone company to determine the telco's rate design, which affects California High Cost Fund-A support. Here, the plaintiffs said that it was an unconstitutional taking for the CPUC to impute Sierra Internet's revenue for determining Sierra Telephone's rate design. Also, Sierra claimed that the CPUC rate design orders conflict with and are preempted by the FCC's 2018 Restoring Internet Freedom (RIF) order, and that the orders violate the dormant commerce clause because Sierra Internet sells interstate services. "Plaintiffs have not sufficiently included factual allegations as to their takings, preemption, and Dormant Commerce Clause claims,” wrote Judge Barbara McAuliffe. On the preemption claim, the court pointed to the 9th U.S. Circuit Court of Appeals’ 2022 ruling on the RIF order, which said that state law can't be preempted by a federal policy preference. The dormant commerce clause claim fails because no interstate burden was alleged, wrote McAuliffe. "The Court rejects the argument that merely being involved in a service deemed ‘inherently interstate in nature’ results in a burden on interstate commerce, absent any such evidence."

A federal grand jury indicted Sam Randazzo, former Ohio Public Utilities Commission chairman, for alleged crimes related to bribery and embezzlement. Randazzo surrendered Monday morning at the U.S. District Court in Cincinnati, said the office of the U.S. Attorney for the Southern District of Ohio. Unsealed Monday, the 11-count indictment "outlines an alleged scheme in which a public regulatory official ignored the Ohio consumers he was responsible for protecting, instead taking a bribe from an energy company seeking favors," said William Rivers, FBI Cincinnati special agent in charge. An appointee of Ohio Gov. Mike DeWine (R), Randazzo chaired the Ohio PUC from April 2019 to November 2020, when he resigned following an FBI raid of his home (see 2011200039). Randazzo allegedly received more than $4.3 million from an energy company and its affiliates to provide favorable actions. Indicting the former chair “is an important step to bring justice to Ohio utility consumers,” said Ohio Consumers’ Counsel Maureen Willis in a statement. Willis called for “near-term reform” of the selection process for appointing Ohio PUC chairs.

​​​​​Counsel for NetChoice and California Attorney General Rob Bonta (D) propose continuing their Dec. 8 initial case management conference to April 4, after briefing is complete in Bonta’s 9th Circuit appeal of the preliminary injunction that blocks him from enforcing AB-2273, the state’s age-appropriate social media law (see 2310190030), said their joint stipulation Tuesday (docket 5:22-cv-08861]) in U.S. District Court for Northern California in San Jose. The parties agree that it would be more efficient to hold the initial case management conference after appellate briefing is complete, “so that the parties’ positions on appeal can be fully developed, and to better inform any necessary case management,” said the stipulation. Bonta’s opening brief in his 9th Circuit appeal is due Dec. 13 and NetChoice’s responding brief is due Feb. 7, with Bonta’s reply due March 13.

Redbox’s Oct. 31 motion to compel plaintiff Ruby Gamez’s Florida Telephone Solicitation Act claims to arbitration (see 2311020049) established that Gamez agreed at least three times in 2019 and 2020 to arbitrate any disputes with the company, said its Nov. 22 reply (docket 8:23-cv-01497) in U.S. District Court for Middle Florida in Tampa in further support of its motion to compel. Redbox “further established” that Gamez “entered into a valid arbitration agreement each time she completed a rental transaction” at a Redbox kiosk, it said. Gamez’s response in opposition relied on July 2022 case law in Gaudreau v. My Pillow (docket 6:21-cv-1899) to argue that Redbox chose “to invoke the judicial process” of this court when it removed Gamez’s case from state court and waited nearly four months before seeking to compel arbitration, it said. Despite Gamez’s argument that Redbox’s inaction “amounts to waiver,” her reliance on Gaudreau is “misplaced,” it said. The “totality of the circumstances” confirms that Redbox never acted “in a manner inconsistent with its asserted right to arbitrate this case,” said the reply. To the contrary, Redbox “repeatedly communicated that it would file a motion to arbitrate the case and did file such a motion at the appropriate time and within months of the complaint being filed,” it said. Gamez alleges Redbox phoned her and countless other Florida consumers to promote its goods and services without their prior express written consent, as the FTSA requires.

A District of Columbia court extended D.C.'s deadline to respond to answer a whistleblower complaint by Cleo Subido, the former interim director of the Office of Unified Communications (OUC). Subido alleged at the D.C. Superior Court that Mayor Muriel Bowser (D) and the District retaliated against her after she disclosed problems at the 911 center (see 2306230005). In a Thursday order, Judge Neal Kravitz denied Subido’s motion for the entry of a default due to defendants’ failure to answer by an Oct. 16 deadline. The judge gave defendants until Dec. 4 to answer in case 2023-CAB-001335. In an Oct. 16 order, Kravatz dismissed the District’s OUC and Fire and Emergency Medical Services, plus Bowser in her official capacity, as defendants in the case. However, the judge said “the complaint otherwise alleges plausible claims of retaliatory harassment and retaliation” against D.C. and Bowser personally.

U.S. District Judge Virginia Hernandez Covington for Middle Florida in Tampa granted Redbox’s Nov. 15 motion for leave to file a reply brief in further support of its Oct. 31 motion to compel plaintiff Ruby Gamez’s Florida Telephone Solicitation Act claims to arbitration (see 2311020049), said her text-only endorsed order Friday (docket 8:23-cv-01497). Though Covington recognizes that Gamez opposes Redbox’s motion for leave, the judge determines that its reply “would be useful in resolving the pending motion to compel arbitration,” said the order. She gave Redbox until Wednesday to file a reply of no more than five pages. Gamez alleges Redbox phoned her and countless other Florida consumers to promote its goods and services without their prior express written consent, as the FTSA requires. But Gamez “expressly agreed,” at least three times before receiving an allegedly unlawful call from Redbox, to arbitrate all disputes with the company, said Redbox’s motion to compel.

Arkansas Attorney General Tim Griffin’s (R) Nov. 13 opposition to NetChoice’s Oct. 27 motion for a discovery stay pending the resolution of NetChoice’s forthcoming dispositive motion in NetChoice’s constitutional challenge to SB-396, the Arkansas age-verification Social Media Safety Act (see 2311140045), confirms that the court should stay discovery, said NetChoice’s reply Friday (docket 5:23-cv-05105) in U.S. District Court for Western Arkansas in Fayetteville in support of the discovery stay. The state’s lead argument “targets a straw man” when it asserts that NetChoice is asking the court to stay discovery based on a “hypothetical, unfiled motion,” said NetChoice’s reply. In reality, NetChoice’s dispositive motion “is scarcely hypothetical,” it said. It will be filed before the Nov. 30 case-management conference “at which the motion to stay will be ripe for resolution,” it said. The state’s remaining arguments “likewise rest on a false premise,” that NetChoice’s claims will rise or fall based on factual conflicts that necessitate discovery, said NetChoice’s reply. The parties may disagree “about the efficacy of existing tools to keep minors safe online,” and whether SB-396's “exception-riddled” age verification and parental consent regime “would meaningfully advance any legitimate governmental interest,” it said. But those disputes are “ultimately immaterial” because SB-396 is “unconstitutional on its face,” it said. Conducting a full and robust discovery process, as the state urges, “would therefore waste the time and resources of all involved,” it said. Worse, it would impose “speech-chilling burdens” on NetChoice members, allowing the state “to conduct a fishing expedition at their expense in hopes of manufacturing a post hoc rationalization for its blatantly unconstitutional law,” it said.