Plaintiff in 'Frivolous' Dish Suit Pushes for 5th Circuit Rehearing en Banc

The 5th U.S. Circuit Court of Appeals seemingly deviated from the guidelines it set in its 1988 Coghlan v. Starkey decision for finding of frivolousness, as well as the summary judgment guidelines the Supreme Court established in its Anderson v. Liberty Lobby decision in 1986, in shooting down his appeal in his lawsuit against Dish Network, said Texas lawyer/plaintiff Larry Polsky in a petition for rehearing en banc Tuesday. The 5th Circuit earlier this month upheld a previous U.S. District Court in Houston summary judgment tossing out Polsky's consumer complaint against Dish, calling his claims frivolous (see 1603030026). In his petition, Polsky said his complaint "involves an important question of law that is of first impression in this Circuit and to every other state and federal court in the United States of America" -- namely, whether an ISP has a duty to disclose to consumers that their Internet service is split among two periods of the day, and usage in one of those periods is not monitored. The 5th Circuit panel in its March decision ignored arguments on Dish's supposed fraud by omission and that its supposedly being "too busy" to monitor gigabyte usage from 2 to 8 a.m., which was cited in the initial summary judgment, isn't something Dish ever asserted, Polsky said.