U.S. District Judge Donald Molloy for Montana in Missoula granted Wall Street Journal tech reporter Meghan Bobrowsky's request to stream audio of the Oct. 12 oral argument on the consolidated motions for a preliminary injunction to block Montana Attorney General Austin Knudsen (R) from enforcing the statewide TikTok ban when it takes effect Jan. 1 (see 2309210009), said Molloy’s text-only order Friday (dockets 9:23-cv-00056 and 9:23-cv-00061). The audio stream “will be terminated in the event of witness testimony,” said the order. The hearing begins at 9 a.m. MDT. Each party will be limited to 30 minutes of argument, and no amici will be permitted to argue.

Gregory Holder of the Zinober Diana law firm in Tampa was appointed mediator in plaintiff Ruby Gamez’s Florida Telephone Solicitation Act class action against Redbox, said U.S. District Judge Virginia Hernandez Covington for Middle Florida in Tampa, in an order signed Tuesday and docketed Wednesday (docket 8:23-cv-01497). Her order scheduled a mediation conference June 4 at 9 a.m. Holder was a circuit court judge for 26 years in Hillsborough County, Florida, per his Zinober Diana bio. Gamez’s class action alleges Redbox phones consumers to promote its goods and services without having secured their prior express written consent, as the FTSA requires (see 2307060003).

The Kentucky 911 Services Board can’t use “semantics” to dodge federal preemption of a state law that required Lifeline providers rather than users to pay a 70 cents 911 surcharge on monthly bills, CTIA told the U.S. District Court for Eastern Kentucky. CTIA urged the court to support its summary judgment motion in a reply Friday (case 3:2020-cv-00043). The state 911 board argued earlier this month that the fee doesn’t thwart universal service (see 2309050068). "On its face, [the Kentucy law] prohibits Lifeline providers from using Lifeline funds to pay the $0.70 per Lifeline end user 911 fee ... thus technically avoiding a direct diversion of federal universal service funds to the state 911 fund,” said CTIA. “However, by increasing the cost of providing Lifeline service to each and every Lifeline end user in Kentucky,” the law’s 911 fee “stands as an obstacle” to federal universal service goals in sections 151, 254 and 1510 of the Communications Act. By imposing the 911 fee on Lifeline providers, the state law “uses semantics to try to get around the express preemption” of Section 1510(c)(1), said CTIA. The state also tries using words to evade “express preemption” of Section 254(e) by prohibiting use of Lifeline funds to pay the 911 fee, but that makes it “impossible” for a company to solely provide free Lifeline services without violating state or federal law, the association said. CTIA also said the law "violates the Equal Protection Clause, the Takings Clause and due process by treating wireless carriers differently: Lifeline providers pay the 911 fee; other wireless carriers do not.” The U.S. signaled it might intervene in the case (see 2309210018).

If the parties call witnesses to testify at the Oct. 12 hearing on the plaintiffs’ consolidated motions for a preliminary injunction to block enforcement of the statewide TikTok ban when it takes effect Jan. 1, under Federal Rule of Civil Procedure 65(a)(2), the court may advance the trial on the merits and consolidate it with the hearing, said U.S. District Judge Donald Molloy for Montana in Missoula in a signed order Wednesday (docket 9:23-cv-00056). The parties had sought clarity from the judge about whether he expected or preferred live witness testimony at the hearing (see 2309200002). Evidence that’s received at the hearing on the motion for an injunction that would be admissible at trial becomes part of the trial record and need not be repeated at trial, said the order. “Beyond some clarifications of the parties’ intentions, the hearing will proceed according to the rules,” it said. Each party will be limited to 30 minutes of argument, and no amici will be permitted to argue, it said.

The U.S. might intervene in CTIA’s legal fight with the Kentucky 911 Service Board at the U.S. District Court for Eastern Kentucky. The court granted the federal government’s Tuesday request for an extension to Oct. 16 from Sept. 25 to respond to Kentucky defendants’ constitutional question, said a text entry Wednesday in case 3:20-cv-00043. Kentucky argued Section 1510(c)(1) of the 2018 Wireless Telecommunications Tax and Fee Collection Fairness Act and Sections 254(f) and 254(i) of the 1934 Communications Act of 1934 violate the 10th amendment. The U.S. said it hasn't decided whether to intervene and still needs approval from the solicitor general, which could take several weeks. "If the United States intervenes, it will file its memorandum in defense of the constitutionality of” the two laws “that same day." CTIA and the Kentucky board opposed each others’ summary judgment motions earlier this month (see 2309050068).

The parties in the consolidated cases in which TikTok users and influencers, plus TikTok itself, seeking an injunction to block enforcement of Montana’s TikTok ban (SB-419) when it takes effect Jan. 1, seek clarity over whether U.S. District Judge Donald Molloy for Montana in Missoula wants to hear witness testimony at the Oct. 12 motion hearing on the requested injunction, said their joint motion Tuesday (docket 9:23-cv-00056). “Absent direction” from the judge that witness testimony would assist the court, “the parties have stipulated that only argument from counsel will be presented,” said the motion.

Unless the court intervenes, Montana, in less than four months, “will shutter a forum for expression used by thousands of its residents,” said the plaintiffs’ consolidated reply Friday (docket 9:23-cv-00056) in U.S. District Court for Montana in Missoula in support of their motions to block enforcement of SB-419, a statewide TikTok ban, when it takes effect Jan. 1. The plaintiffs are a group of TikTok users and influencers (see 2305190035) plus TikTok itself (see 2305230053). The state characterizes its “unprecedented” ban as “a regulation of conduct,” but SB-419 “prohibits First Amendment speech,” and will bar videos created by Montanans on topics “ranging from art to politics,” the reply said. The state insists SB-419 is necessary “to address supposed national security threats,” but the federal government has the “exclusive authority” to respond to such threats, and the state offers “no credible evidence to substantiate those threats,” the reply said. Nor does the state explain why banning TikTok is necessary when “less restrictive alternatives” would address the state’s “purported concerns,” it said. For those reasons, the plaintiffs “are likely to succeed on their First Amendment claims,” it said. The plaintiffs also are likely to succeed on their preemption and Commerce Clause claims, said their reply. The ban “intrudes on the federal government’s exclusive authority over matters of foreign affairs and national security,” plus it also conflicts with two federal statutes, the Defense Production Act and the International Emergency Economic Powers Act, it said. The state’s “contrary arguments” ignore binding 9th Circuit Court of Appeals precedent and “misconstrue ongoing federal regulatory proceedings” designed to address the state’s alleged concerns, it said. SB-419 also violates the Dormant Commerce clause because it bans TikTok only so long as it’s owned by ByteDance or another foreign company, “and because it regulates a platform Montanans use to conduct worldwide commercial activity,” it said. Those are conclusions that the state “does not rebut,” it said. All the state’s merits arguments fail, and the state doesn’t dispute that the “serious harms” detailed in the plaintiffs’ opening briefs “are irreparable,” it said. The court should “enjoin enforcement” of SB-419, it said.

Charter Communications seeks an order directing Bridger Mahlum, its former director-state government affairs, to show cause why he shouldn’t be held in civil contempt for defying the court’s Aug. 30 temporary restraining order by not quitting his job with BroadbandMT, a direct competitor, said Charter’s emergency motion Thursday (docket 3:23-cv-01106) in U.S. District Court for Connecticut in New Haven. Charter is seeking to prevent Bridger Mahlum, its former director-state government affairs, from continuing to breach his noncompete agreement and from misappropriating Charter’s trade secrets involving state broadband funding (see 2308210001). The court’s TRO was “unequivocal,” said Charter’s emergency motion. Mahlum can’t violate his noncompetes, which include being employed by BroadbandMT, it said. Mahlum’s noncompliance with the TRO “is clear and convincing, as his attorney has confirmed that Mahlum has not resigned his employment,” it said. Mahlum continues to cause irreparable harm to Charter, now in violation of the TRO, “especially given Mahlum’s Charter-built reputation, high-profile position, and intimate knowledge of Charter’s trade secrets,” it said.

Redbox denies the allegations in plaintiff Ruby Gamez’s Aug. 30 first amended complaint that it violated the Florida Telephone Solicitation Act by placing unwanted automated and prerecorded solicitation calls to hundreds of consumers (see 2308310027), said its answer Wednesday in U.S. District Court for Middle Florida in Tampa. Redbox doesn’t waive its right to file a motion to compel arbitration or to strike Gamez’s class allegations under its terms of use, it said. Those terms include a binding agreement to arbitrate and a waiver of the right to bring claims via class arbitration, class action or any other “representative class proceeding,” it said. Gamez’s claims are barred because the calls at issue were invited, permitted and consented to, or were made under “a personal or an established business relationship,” said Redbox. Her claims also are barred because the FTSA is unconstitutional, it said. The statute violates the Dormant Commerce Clause because it regulates or “discriminates against, and unduly burdens, interstate commerce,” it said. Section 8(a) of the FTSA also violates the due process clause of the 14th Amendment and Florida’s due process guarantee because it’s “unconstitutionally vague,” it said. Section 8(a) also violates the First Amendment and Florida’s “free speech guarantee,” it said: “Two closely analogous state laws in South Carolina and Arkansas have already been declared unconstitutional.”

The 48 states and the District of Columbia that allege VoIP services provider Avid Telecom, its CEO Michael Lansky and its Vice President Stacey Reeves facilitate robocalls or help others make robocalls (see 2305240010) oppose the defendants’ Sept. 8 motion for a 30-day extension to Oct. 9 to answer the states’ complaint, said their opposition Wednesday (docket 4:23-cv-00233) in U.S. District Court for Arizona in Tucson. When a party fails to timely act, a court “may extend the time to act for good cause if that party failed to act as a result of excusable neglect,” said the opposition. But the defendants “have failed to demonstrate, or even argue,” that their failure to respond to the complaint was the result of excusable neglect, it said. The defendants filed their motion for an extension a day after their response to the complaint was due Sept. 7, and they’re wrong to blame the untimeliness of their motion as a docketing issue, said the states. The defendants’ counsel’s failure to seek admission pro hac vice until after regular business hours on the day of the filing deadline, in a case that has been pending for more than 100 days, is neither a docketing issue nor excusable neglect, said the opposition. Any further extension of time would prejudice the plaintiffs in that it would delay the start of discovery, it said. That would potentially lead to the unavailability of evidence or the failure of witnesses’ memories, it said. It would also allow the defendants “to benefit from their own dilatory actions” in failing to timely respond to the complaint or to otherwise comply with the Federal Rules of Civil Procedure and local rules of the court, it said. The states want the court to deny the defendants’ belated motion to extend and to enter a default against them, said their opposition. If a default is entered, the defendants won’t be left “without options,” it said. The defendants will have an opportunity to ask the court to set aside the default for good cause, it said. The defendants also wouldn’t be prejudiced if the court “imposes restrictions on their ability to make any answers, responses, and/or affirmative defenses,” because the untimely filing was caused by the defendants’ “inaction,” it said.