Plaintiff-appellant Jacob Howard’s case against the Republican National Committee “hinges on a legal theory that is as novel as it is untenable,” said the RNC’s answering brief Saturday (docket 23-3826) in the 9th U.S. Circuit Appeals Court. Howard alleges that a text message containing a video constitutes an artificial or prerecorded voice call under the Telephone Consumer Protection Act, said the RNC. But the district court recognized the “absurdity” of Howard’s claims “and rightly dismissed them,” it said. U.S. District Judge Steven Logan for Arizona in Phoenix held that the text messages weren’t actionable under the TCPA because the downloaded videos didn’t automatically begin playing (see 2402080021). The messages therefore “provided a conscious choice of whether to engage with the audible component” of the downloaded video, but that was different “from what the TCPA intended” by barring calls using a prerecorded voice, said his order. Though the TCPA protects Americans’ right to privacy, it doesn’t “impose liability for every telephone communication that a recipient dislikes,” said the RNC’s answering brief. “Nor does the TCPA permit curtailment of political speech -- even when that speech comes in the form of a text message,” it said. The TCPA also exempts political communications and certain communications from nonprofit organizations from its prohibitions, it said. Both exemptions “plainly apply here,” it said. Howard’s complaint “pleaded him out of his TCPA claim,” it said. The district court “thus properly dismissed his case,” it said. On appeal, Howard “now challenges every facet of this decision by raising any fleeting legal theory he can conjure,” it said. These theories “are uniformly without merit,” it said. The 9th Circuit should affirm, it said.

U.S. District Judge Michael Watson for Southern Ohio in Columbus overruled the objections of defendant Vivek Ramaswamy to a magistrate judge’s order granting plaintiff Thomas Grant’s motion for limited expedited discovery in his Telephone Consumer Protection Act class action against the former Republican presidential candidate (see 2404050013), said Watson’s signed opinion and order Friday (docket 2:24-cv-00281). Grant sought the discovery to preserve relevant records of calls that Ramaswamy’s campaign made to him and his putative class members to solicit their participation in his telephonic town halls. Ramaswamy had asked the court to set aside the order as “clearly erroneous and contrary to law.” But the magistrate judge rightly found there was good cause for granting the discovery motion, said the opinion and order. Though this isn’t a case involving patent infringement or unfair competition, “all the other factors” favor plaintiff Grant, it said. He persuasively argues that there’s a risk that evidence will be lost, it said. Grant’s counsel "represents" that in other TCPA cases, some of the companies that make calls on behalf of others have policies to destroy call logs within a few months, it said. "Of course, that does not prove the evidence in this case will be lost," but Grant "has presented a sufficient basis for concluding that there is a risk that the evidence will be lost," it said. That's "enough for this factor to favor allowing early discovery," it said. Ramaswamy also would suffer “little prejudice” from discovery, it said. The only thing he has to do is give Grant the name of the dialer that the campaign used, it said. The scope of the requested discovery is narrow, it said. Indeed, the plaintiff asks only for the identity of the dialer and for permission to subpoena call logs from the dialer. The request is limited to only what he needs to preserve the call transmission logs, and that factor also “supports allowing early discovery,” it said. On Ramaswamy’s argument that the magistrate judge erred by ruling on a discovery dispute before resolving his jurisdictional challenge, that argument fails because the court has subject-matter jurisdiction over the case, said the opinion and order. On the former candidate's objections to the magistrate judge allowing Grant to serve a third party with a subpoena, Ramaswamy “lacks standing to raise this objection,” it said. He offers no argument that he has “any claim of privilege to the information sought by the subpoena,” it said.

The U.S. on April 5 rejected an importer’s claim that, based on the legislation governing changed circumstances reviews, the Commerce Department may not begin any new antidumping or countervailing duty investigations on a product within two years of the prior one (Wabtec Corporation v. U.S., CIT # 23-00160, -00161).

Maryland legislators received strong responses after sending privacy and online safety bills to Gov. Wes Moore (D) for final approval. Consumer Reports (CR) applauded the General Assembly for the comprehensive privacy bill (SB-541/HB-567) that it said exceeded other states’ laws in certain ways. On the other hand, tech industry group NetChoice bemoaned a growing patchwork of state laws, 16 and counting.

CTIA told the FCC that the Telephone Consumer Protection Act doesn’t apply to robocalls and robotexts from wireless service providers to their subscribers. Indeed, CTIA added that the FCC has affirmed this "multiple times." However, consumer groups said nothing in the TCPA “justifies special treatment for wireless providers.” Comments were posted Friday in docket 02-278. Commissioners approved an order and Further NPRM in February seeking comment on the wireless provider exemption (see 2402160048).

Industry and consumer advocates urged the FCC on Friday to include changes in its draft order reestablishing net neutrality rules. Commissioners will consider the item during the agency's April 25 meeting (see 2404040064). Some said the draft order didn't adequately address forbearance for ISPs. The draft’s state preemption provisions received praise -- and concern -- from current and former regulators.

In April 3 oral arguments before the U.S. Court of Appeals for the Federal Circuit, the government said that the 1930 Tariff Act was recently amended to “explicitly not require” the Commerce Department to show that an exporter’s rate reflects its commercial reality (Pro-Team Coil Nail Enterprise v. U.S., Fed. Cir. # 22-2241).

The FCC will take a series of steps to reestablish the commission's net neutrality framework and reclassify broadband internet access service (BIAS) as a Communications Act Title II telecom service in a declaratory ruling and order (see 2404030043). A draft of the items to be considered during the agency's April meeting, released Thursday, would establish "broad" and "tailored" forbearance for ISPs. The draft doesn’t make a final determination on how network slicing should be treated under the rules.

Opening briefs of the four petitioners and their intervenor supporters challenging the FCC’s Dec. 26 quadrennial review order for allegedly violating Section 202(h) of the Telecommunications Act (see 2403220041) would be due July 15 under a proposed briefing schedule that has the backing of all parties, NAB told the 8th U.S. Circuit Court of Appeals in a filing Tuesday. Sept. 13 is the proposed deadline for the FCC’s response brief and that of NCTA, which is intervening to defend the order against the petitioners’ Section 202(h) challenges, said the filing. Reply briefs would be due Oct. 15 and final briefs on Nov. 18, it said. The proposed schedule “would allow for the briefing to be complete and the cases ready for submission on the merits” before the end of calendar 2024, it said. The petitioners currently anticipate filing joint opening and reply briefs, it said. The intervenors supporting the Section 202(h) challenge anticipate filing two sets of opening and reply briefs, one from the four network affiliates associations, the other from six radio ownership groups, it said. “The number of briefs, the issues the parties intend to raise, and the number of words needed for full and efficient presentation of the issues could change if additional petitions for review or intervention motions are filed,” it said. April 15 is the deadline to file additional petitions for review of the quadrennial order; further intervention motions would be due 30 days later, said the filing. The parties request leave to file a supplemental joint proposed briefing schedule by April 22, seven days after the deadline to file a petition for review, it said. They further request leave to file a second supplemental joint proposal by May 22, if necessary, seven days after the deadline to intervene, “to ensure all parties are accounted for,” it said. The consolidated petitions pending in the 8th Circuit are from Zimmer Radio (docket 24-1380), Beasley Media Group (docket 24-1480), NAB (docket 24-1493) and Nexstar Media Group (docket 24-1516).

Opening briefs of the four petitioners and their intervenor supporters challenging the FCC’s Dec. 26 quadrennial review order for allegedly violating Section 202(h) of the Telecommunications Act (see 2403220041) would be due July 15 under a proposed briefing schedule that has the backing of all parties, NAB told the 8th U.S. Circuit Court of Appeals in a filing Tuesday. Sept. 13 is the proposed deadline for the FCC’s response brief and that of NCTA, which is intervening to defend the order against the petitioners’ Section 202(h) challenges, said the filing. Reply briefs would be due Oct. 15 and final briefs on Nov. 18, it said. The proposed schedule “would allow for the briefing to be complete and the cases ready for submission on the merits” before the end of calendar 2024, it said. The petitioners currently anticipate filing joint opening and reply briefs, it said. The intervenors supporting the Section 202(h) challenge anticipate filing two sets of opening and reply briefs, one from the four network affiliates associations, the other from six radio ownership groups, it said. “The number of briefs, the issues the parties intend to raise, and the number of words needed for full and efficient presentation of the issues could change if additional petitions for review or intervention motions are filed,” it said. April 15 is the deadline to file additional petitions for review of the quadrennial order; further intervention motions would be due 30 days later, said the filing. The parties request leave to file a supplemental joint proposed briefing schedule by April 22, seven days after the deadline to file a petition for review, it said. They further request leave to file a second supplemental joint proposal by May 22, if necessary, seven days after the deadline to intervene, “to ensure all parties are accounted for,” it said. The consolidated petitions pending in the 8th Circuit are from Zimmer Radio (docket 24-1380), Beasley Media Group (docket 24-1480), NAB (docket 24-1493) and Nexstar Media Group (docket 24-1516).