N.Y. Defense of ABA Set for Oral Argument in 2nd Circuit in January

A busy communications litigation calendar is set for early 2023, highlighted by Jan. 12 oral argument in the 2nd U.S. Circuit Court of Appeals, where New York Attorney General Letitia James (D) is trying to reverse a preliminary injunction that bars her from enforcing the state’s Affordable Broadband Act (ABA) over the objections of the New York State Telecommunications Association, CTIA and other trade groups (docket 21-1975).

Several wireless infrastructure cases also are scheduled to progress through the appellate courts early in the new year, including AT&T’s long-awaited opening brief, due Jan. 12, in its 9th Circuit appeal of the district court’s dismissal of its complaint against the city of Los Altos, California (docket 22-16432). More novel litigation resides in the half-dozen class actions filed late in 2022 that seek to hold major automakers accountable for installing allegedly obsolete telematics equipment in their vehicles, rendering internet-enabled features, such as roadside emergency assistance, inoperable after AT&T’s 3G phase out in 2022. The first automaker response to any of those class actions is due Jan. 18 in U.S. District Court for Central California in Los Angeles, where Toyota is the defendant (docket 2:22-cv-08147).

Plaintiff-appellees in the action against New York AG James contend the ABA subjects the same broadband service that the Communications Act says should not be subject to common-carrier obligations to a form of per se common-carrier rate regulation. Defendant-appellant James casts the ABA not as common carrier rate regulation but as an accessible pricing scheme. The ABA mandates that all broadband providers operating in the state offer all qualifying low-income homes a $15 monthly broadband plan with download speeds of at least 25 Mbps. A $20 monthly step-up plan would offer at least 200 Mbps download.

The plaintiff-appellees argue federal law preempts the field of interstate communications services, citing precedent finding Congress’ intent in the Communications Act’s broad scheme of regulation over interstate service by communications carriers. Because the ABA defines broadband service in the same way as the FCC, they say, New York impermissibly seizes jurisdiction outside its intrastate services boundary.

Defendant-appellant James counters that the Communications Act establishes a system of dual state and federal regulation, with states retaining jurisdiction over intrastate communication services and through which New York may enact the ABA’s purely intrastate affordable-pricing scheme. In granting the injunction barring James from enforcing the ABA, U.S. District Judge Denis Hurley for Eastern New York in Central Islip ruled that the plaintiff-appellees demonstrated a likelihood of success on the merits based on field preemption. The ABA, he said, is not a purely intrastate affordable-pricing scheme, nor is it reasonable to read its statutory text in that manner.

AT&T, in its 9th Circuit infrastructure appeal (see 2210070046), contends Los Altos responded to its 2019 application to install 12 small-cell wireless facilities on existing utility poles in the public rights-of-way by changing its ordinances to prohibit such installations. AT&T sued the city under Telecommunications Act provisions for expedited federal court review of local decisions denying permits to place wireless facilities. AT&T contends that the city’s denials were not supported by substantial evidence, as the statute requires.

Los Altos disputes that it has violated any law in denying AT&T’s applications or that it's effectively prohibiting AT&T from providing adequate personal wireless services in the area. The city alleges AT&T fails to state facts sufficient to constitute a cause of action, including because AT&T failed to provide an adequate gap analysis and alternative sites analysis.

The obsolete-telematics class action against Toyota is one of six similar actions pending in various jurisdictions against BMW, Ford, Nissan, Porsche and Volkswagen (see 2211070032). All the complaints assert that AT&T introduced 3G in 2006, then in February 2019 it publicly announced a plan to sunset its 3G wireless network to make way for its deployment of 5G.

Despite the inevitability of AT&T’s decommissioning its 3G network, and the public announcement of the timetable in February 2019, the automakers continued to manufacture their vehicles with 3G modems, to the detriment of consumers who were unaware their telematics services would become inoperable. The automakers knew or should have known that AT&T would decommission its 3G network before the end of the usable life of the vehicles and while they were still under warranty, say the complaints, none of which name AT&T as a defendant.

Other litigation developments that bear watching for early 2023 include Jan. 26 oral argument before the U.S. Judicial Panel on Multidistrict Litigation on several pending motions to transfer the roughly 15 fraud class actions arising from last summer’s Samsung data breach and consolidating them under a single judge (see 2212190025). Jan. 3 is the deadline for counsel to declare their intention to participate in oral argument or waive an appearance. The plaintiffs are roughly evenly divided between Northern California and New Jersey as their preferred transferee venue. Samsung’s preference is to transfer the cases to U.S. District Court in Las Vegas.

In the cellphone RF radiation lawsuit in U.S. District Court for Western Louisiana in Lake Charles, Jan. 12 is the deadline for briefs on the plaintiffs’ request for leave to conduct discovery as they prepare to defend against the defendants’ motion to dismiss on grounds that the case is preempted by federal law (see 2211040044). The April 2021 complaint argues the cellphone industry worked to suppress information showing many handsets didn’t comply with the FCC’s specific absorption rate limitations for how much RF radiation is absorbed into the body, and it alleges that this led to Frank Walker’s death from brain cancer. Walker’s wife and two sons are the plaintiffs in the case.