The 9th U.S. Circuit Court of Appeals affirmed the district court’s dismissal of plaintiff Clyde Cheng’s Telephone Consumer Protection Act claims against former Rep. Jackie Speier, D-Calif., said the court's majority opinion Wednesday (docket 22-16170) from Judges Sidney Thomas and Morgan Christen. Judge Daniel Bress dissented. The FCC “reasonably concluded” the TCPA doesn’t apply to robocalls “made by federal legislators conducting official government business, including organizing tele-town halls,” it said. The U.S. District Court for Northern California therefore “properly dismissed the suit,” it said. The district court also didn’t abuse its discretion in denying Cheng leave to amend his complaint,” said the opinion. Amending the complaint amendment “would be futile” because Cheng hasn’t offered any new facts that he would add to an amended complaint to contest whether Speier’s robocalls “are subject to the TCPA’s requirements,” it said. In his dissent, Bress said it’s “undisputed” that the TCPA’s prohibitions don’t apply to federal lawmakers conducting their official course of business. But Cheng also sued Speier “in her individual capacity,” and “sovereign immunity” doesn’t bar suits “seeking to impose individual liability on government officials,” said the judge. The question, then, is whether Cheng’s suit “is properly characterized as an individual capacity suit, or one that is really against the sovereign,” he said. Case law shows Cheng’s lawsuit against Speier “is an individual capacity suit to which sovereign immunity does not apply,” he said. Cheng is alleging Speier “committed tort-like wrongdoing in the form of unwanted robocalls,” said the judge. He doesn’t seek a money judgment against the U.S. or Congress, but from Speier herself, he said. Since Speier no longer is in Congress, there’s “no risk that any injunction against Speier in her personal capacity would run against the sovereign,” he said. The district court “therefore erred” in dismissing Cheng’s TCPA claim against Speier in her individual capacity, he said. Bress favored limiting the 9th Circuit’s decision to that issue and remanding to the district court for further proceedings, “including its consideration in the first instance of any other bases for dismissal that Speier might raise,” he said: “That would include whether the TCPA extends to members of Congress in the circumstances alleged, as well as any personal immunity or other defenses that Speier would offer.”

Plaintiff Jane Doe’s May 15 class action “raises understandable concerns about nefarious companies” that steal sensitive user data, and then profit from selling or sharing that data, said Qualtrics’ motion Monday (docket 2:23-cv-00718) in U.S. District Court for Western Washington in Seattle to dismiss her complaint for failure to state a claim. But her concerns “don’t apply to Qualtrics, as her own complaint demonstrates,” said the motion.

The FCC’s July 3 opposition to Gerald Parks' March 22 mandamus petition wrongly argues that the U.S. Appeals Court for the D.C. Circuit lacks jurisdiction to grant Parks his requested relief because the FCC’s Media Bureau canceled his license for AM radio broadcast station WEKC Williamsburg, Kentucky, in August 2020 (see 2307050035), said Parks’ reply Tuesday (docket 23-1078). But Parks' license remains very much in effect while his 2012 renewal application remains pending, said the reply.

Google’s revised privacy policy “purports to give it ‘permission’ to take anything shared online” to train and improve its artificial intelligence (AI) products, including personal and copyrighted information, said a class action Tuesday (docket 3:23-cv-03440) in U.S. District Court for Northern California in San Francisco.

Senate Democratic officials and other observers now believe it's a matter of when, not if, the chamber will confirm FCC nominee Anna Gomez and renominated Commissioners Brendan Carr and Geoffrey Starks after the Commerce Committee advanced them Wednesday, all on non-unanimous voice votes, as expected (see 2307110071). Backers of Gomez and Starks and other observers cited unified committee Democratic support for Gomez and Starks as a sign they may get unanimous caucus backing on the floor. At least one of the four Commerce Republicans who didn't oppose the Democratic nominees Wednesday plans to vote for them on the floor.

One of the “central prerogatives” of the president and executive branch officials is to speak to members of the U.S. public, including American companies, “about how they can help mitigate threats,” said DOJ’s emergency motion Monday (docket 23-30445) at the 5th U.S. Circuit Court of Appeals to stay the preliminary injunction that bars Biden administration officials from conversing with social media companies for the purposes of moderating content (see 2307100045). The plaintiffs, including the Republican attorneys general of Louisiana and Missouri, oppose the emergency motion, said DOJ.

The FCC was in the hot seat Tuesday at the 9th U.S. Circuit Court of Appeals, which heard oral argument in League of California Cities v. FCC (case 20-71765) on a challenge to a wireless siting declaratory ruling approved in June 2020 under former Chairman Ajit Pai (see 2006090060).

The FCC was in the hot seat Tuesday at the 9th U.S. Circuit Court of Appeals, which heard oral argument in League of California Cities v. FCC (case 20-71765) on a challenge to a wireless siting declaratory ruling approved in June 2020 under former Chairman Ajit Pai (see 2006090060).

T-Mobile on Friday removed a case from New York Supreme Court in Brooklyn, said its notice (docket 1:23-cv-05206) in U.S. District Court for Eastern New York in Brooklyn. Plaintiff Benjamin Kyle sued T-Mobile and T-Mobile store employees Silvia Hernandez and Emma Nodine, alleging a T-Mobile data breach enabled Hernandez and Nodine to unlawfully access his cell phone’s SIM card with his financial information, social security number and over $30,000 in funds from his Coinbase cryptocurrency account.

The FCC “reasonably exercised” its statutory authority when it decided the pole attachment rate Duke Energy charged AT&T was unjust and unreasonable, said the commission’s responding brief Thursday (docket 22-2220) in the 4th U.S. Circuit Court of Appeals to the Duke and AT&T consolidated petitions for review. The FCC also properly decided AT&T should pay Duke a pole attachment rate that’s lower than the rate in their joint use agreement but higher than the rate paid by other companies that attach their lines to Duke’s poles, it said.