Defendant Keiser University seeks the denial of plaintiff Maria Fernanda Soto Leigue’s Feb. 14 motion to sever her claims that it violated the Florida Telephone Solicitation Act by sending her unwanted autodialed text messages and remand them to state court, said the school’s opposition Tuesday (docket 1:22-cv-22307) in U.S. District Court for Southern Florida in Miami. The plaintiff wants to keep in federal court her claims Keiser violated the FTSA by contacting individuals whose numbers were on the national do not call registry. Her motion argued several courts in Florida’s Southern and Middle districts recently said there's no Article III standing for claims involving autodialed text message violations under the FTSA, as she alleges against Keiser. If the court agrees she lacks standing to assert the text-messaging claims, then it should either dismiss or remand all the claims in her complaint “in their entirety,” said the school. The motion is “an obvious attempt at claims-based forum shopping,” Keiser said. The plaintiff would like the court to think that, even though she concedes lack of concrete harm for the autodialer claim, she still alleges an “injury-in-fact” for the DNC claim, said the school. She fails to explain how the court “can exercise subject-matter jurisdiction over the DNC claim but not the autodialer claim -- where both claims arose out the same facts” and, according to her complaint, “yielded the same harm,” it said.

The originally unpublished Feb. 1 opinion in Securus v. California Public Utilities Commission will be published, the 2nd District California Court of Appeals ordered Monday in case B320207. The CPUC on Feb. 16 requested publishing it. The court said there's no change to its judgment affirming the commission’s 2021 decision to provide interim relief by capping intrastate calling rates for incarcerated people at 7 cents per minute and banning ancillary fees (see 2302020036).

Cities want a state court to concoct a constitutional reason to reject a 2019 Texas right-of-way (ROW) law, the state replied Friday at the Texas 3rd Court of Appeals (case 03-22-00524-CV). McAllen and other Texas cities are challenging a 2019 law that stopped municipalities from charging telecom providers twice when they use the ROW for phone and video (see 2301270028 and 2302100065). Cities ask the court to "create a new constitutional doctrine requiring each individual or business to pay a separate fee for each individual use of the ROW," without "any guidance of how this new doctrine could practically operate," Texas said. "In practice, it would be a way for future litigants to sue to block any government program they do not like by arguing somebody somewhere is getting some 'thing of value' without paying for it." Cities conceded in a previous brief that they have no authority explaining why the legislature lacked discretion to require one ROW fee to an affiliated group, said Texas: Now they "argue that because there traditionally was a separate ROW fee for phone service and a separate ROW fee for cable service, there is somehow now a constitutional requirement to continue paying each of those fees separately.”

The seven plaintiff states in the Houston robocall case accused defendant Michael Smith and his attorneys of slow-walking his application through the U.S. Bankruptcy Court for Southern Florida for authorization to retain special counsel to defend him in the litigation, they told U.S. District Judge George Hanks for Southern Texas in a filing Friday (docket 4:20-cv-02021). They were responding to a Feb. 16 status report from Smith’s lawyers in which the lawyers said they were helpless to defend him as the Houston litigation against him proceeds toward trial until the bankruptcy court gives them its special counsel OK (see 2302230013). But not only did Smith and his attorneys wait more than two weeks after Hanks’ Jan. 31 status conference to file the application with the bankruptcy court, but they failed to ask for expedited review, said the states. Unbeknown to Hanks, who was told by Smith’s lawyers that the application for special counsel takes about three weeks to process, the bankruptcy court scheduled a hearing on the application, but not until March 16, they said. The states also complained they were given no advance notice by Smith’s lawyers of his Jan. 18 bankruptcy filing, they said. The states “oppose any unnecessary delays in this case,” including allowing 14 days after the bankruptcy court’s approval of the special counsel for Smith’s lawyers to file a motion in this case addressing the issue of a stay, they said.

Defendant Mercantile Adjustment Bureau denies it’s subject to the Texas Telephone Solicitation Act and the statute’s requirement that telephone solicitors need to register with the state, said the debt collector’s reply Thursday (docket 3:22-cv-02737) in U.S. District Court for Northern Texas in Dallas to plaintiff Sage Telecom’s opposition to Mercantile’s motion to dismiss. Sage alleges at least 187 subscribers to its Lifeline services received multiple telephone solicitations in the past two years from a phone number owned by Mercantile (see 2302100037). Mercantile’s motion to dismiss said Sage lacks standing because it didn't receive any calls itself and thus didn't suffer damage. Sage’s opposition “conveniently fails” to address that the amended complaint “fails to articulate any facts regarding the content or subject matter of the alleged 187 telephone calls,” said the reply. There’s no assertion in Sage’s allegations about “the identity of the recipient of the telephone calls or most importantly, whether the recipient actually answered the telephone call and what was said during any telephone conversation,” it said. Without “pleading any facts” about the content of the alleged calls, the amended complaint “must fail,” it said.

The three dozen plaintiff states seeking to thwart Google’s alleged search monopolies support DOJ’s motion in the consolidated antitrust litigation to sanction Google for destroying evidence, said their own motion Thursday (docket 1:20-cv-03010) in U.S. District Court for the District of Columbia. The states also support convening an evidentiary hearing “to determine the appropriate remedy for the destruction of relevant materials that would have otherwise been discoverable during the governments’ investigations and discovery in this action,” they said. The same misconduct in which DOJ alleges Google has engaged “is equally applicable” to the plaintiff states, “and should be subject to all the same curative measures,” they said. Google owes the states and DOJ “the same duty to preserve its internal chat messages,” they said. “Google’s duty to preserve employee chat messages began at least as early as 2019 when it anticipated litigation” stemming DOJ’s investigation, they said. Google’s practice of deleting chat messages “necessarily inflicted overlapping prejudice” on the states and DOJ, they said. Google’s “misconduct inflicted particularized prejudice” on the plaintiff states because the deleted chats were “likely relevant to the additional anticompetitive conduct alleged” by the states, they said.

The California Public Utilities Commission decision to switch state USF contribution to a connections-based mechanism “increases the cost of the surcharge for most wireless customers,” said an amicus brief Friday (docket 3:23-cv-00483) from four nonprofits on behalf of the disadvantaged in support of T-Mobile’s challenge of the surcharge in U.S. District Court for Northern California in San Francisco (see 2302020058). The methodology change “will substantially increase the portion of the total CPUC funding costs borne by lower-income, minority communities,” said the Multicultural Media, Telecom and Internet Council, ALLvanza, the NAACP’s California Hawaii State Conference and LatinoJustice. The new methodology “will harm the many Americans who remain on the wrong side of the digital divide,” they said. A hearing on T-Mobile’s challenge is set for March 16 (see 2302150043). With its “flat-fee per access-line approach,” the CPUC places “the same burden on a low-income individual who buys the minimal option for connectivity as a business or a millionaire who purchases every possible service for connectivity,” said the nonprofits. The “disproportionate and unfair” price change will ultimately force low-income individuals that rely on mobile wireless services to access broadband “to lose that access,” they said. Affordable and “varying wireless options” in the past several years “have helped bridge the digital divide that prevents low-income and communities of color from accessing broadband services in the same proportion as people in more affluent communities,” said the nonprofits. The CPUC’s shift to flat-fee access-line surcharges “threatens that progress by increasing the price of wireless services and decreasing carriers’ ability to offer options accessible to a variety of consumers,” they said. Though the CPUC “purports to avoid directly imposing a tax on broadband,” the practical effect of the increased surcharge “would be to impose an additional tax on individuals who rely on their wireless phone primarily, if not exclusively, for non-taxable broadband access,” said the nonprofits. Higher-income individuals who can afford to buy a home broadband subscription don’t pay the surcharge on that service, they said. “The result is not a fee proportionate with use, but instead an effective higher tax rate on individuals least able to afford it,” they said. The access-line surcharge “results in an end run around the preemption on taxing broadband services, but only for those often lower-income and people in communities of color, that do not have stand-alone broadband,” they said.

A judge scheduled a case management conference for March 2 in a MetroPCS lawsuit against the California Public Utilities Commission at the U.S. District Court of Northern California. The hearing will start at 10 a.m. PST, District Judge James Donato ordered in a Wednesday text entry in docket 3:17-cv-05959. The wireless company sued the CPUC in 2017 to challenge California assessing USF payments for prepaid phone service. MetroPCS said the 2014 California Prepaid Act and related CPUC resolutions imposing USF surcharges on prepaid wireless are unlawful and preempted (see 2204250049). In a related investigation, the CPUC is seeking up to $230 million in fines against Metro for failing to remit the state USF payments (see 2204250049).

Lawyers for defendant Paul La Schiazza, including Tinos Diamantatos of Morgan Lewis, have continued to “comb through” the discovery documents tendered by the government in its prosecution of the former AT&T Illinois president on bribery and racketeering charges, Diamantatos told U.S. District Judge Robert Gettleman for Northern Illinois in Chicago in a telephone status conference Thursday. The volume of discovery materials “is very, very large,” he said. “We have gone through enough of it to have a good sense of what, if anything, we would file in terms of pretrial motions at this stage,” he said. La Schiazza’s defense team has no intentions of filing a bill of particulars motion or a motion to dismiss, said Diamantatos. Gettleman scheduled the next telephone status conference for April 4 at 8:45 a.m. CDT, and instructed Diamantatos and DOJ attorney Julia Schwartz to be prepared then to discuss setting an early-2024 jury trial date. The judge also gave Diamantatos a March 27 deadline for filing any pretrial motions. La Schiazza pleaded not guilty Oct. 21 to charges in an Oct. 12 grand jury indictment that he authorized a series of nine $2,500 monthly payments, totaling $22,500, to a close ally of former Illinois House Speaker Michael Madigan (D) for a no-show job. Madigan in return successfully pushed through legislation making it easier for AT&T to terminate its costly carrier of last resort obligation to continue providing landline services to Illinois residents, said the indictment.

The Office of Florida Attorney General Ashley Moody (R) opposes Smartbiz Telecom’s Feb. 3 motion to stay discovery in the state’s robocall complaint against the defendant (see 2302060033) “because it will create case management problems and is not justified in fact or law,” said its opposition Tuesday (docket 1:22-cv-23945) in U.S. District Court for Southern Florida in Miami. Smartbiz requests a stay of “indefinite length” until the court has ruled on its motion to dismiss, it said. But that motion “is unlikely to be dispositive and does not warrant delaying discovery in this case,” it said. Smartbiz’s assertions the AG’s discovery requests are overly broad and unduly burdensome -- one of the bases of the defendant’s motion to stay -- are “without factual support,” said the opposition. These objections “can be efficiently litigated during the pendency” of the motion to dismiss, “and do not present a reason to stay this case,” it said. "The existence of a dispositive motion may weigh in favor of a stay, but there is no rule requiring a stay while such a motion is pending," said the AG. Though it's not necessary for the court to decide the motion to dismiss to determine whether the motion to stay discovery should be granted, the court needs to "take a preliminary peek" at the motion's merits to dismiss "to see if it appears to be clearly meritorious and truly case diapositive," it said. A stay "will likely impact the case deadlines" the court put in place, and Smartbiz "has not justified the delay," it said.