• On August 11, 2010, the US District of New York for the Northern District of New York (NDNY) became the second court in as many weeks to deny a request by Level 3 Communications to freeze litigation brought against it for failure to pay for operation of its broadband network over a plaintiff’s property (see last week’s This Week In Telecom for a summary of the Idaho case). Here, the NDNY denied Level 3’s motion to stay this federal suit brought by the New York State Thruway Authority (NYSTA) for Level 3’s failure to pay more than $2 million in right-of-way fees. Level 3 has petitioned the FCC for a finding that the NYSTA’s payment demands were “unreasonable and discriminatory” and preempted under section 253 of the Communications Act. The NDNY rejected Level 3’s argument that the court should stay its hand while the FCC resolves Level 3’s petition, finding instead that the parties had a contract dispute that the court is capable of resolving: “the Court agrees with NYSTA that FCC does not have special competence in this arena and this matter does fall squarely within the conventional experience of judges.” The “litigation already in this Court should not be held hostage to an administrative process that is not proceeding with all deliberate speed, especially when there is a public interest in prompt adjudication of a plaintiff’s claims,” the court concluded. New York State Thruway Ass’n v. Level 3 Commc’ns, LLC, Case No. 1:10-CV-154 (NDNY).
  • On August 10, 2010, a Wisconsin appeals court affirmed the dismissal of a putative class action complaint filed against AT&T Wisconsin and various other carriers for wrongfully billing for unauthorized services – “cramming” – on the ground that the complaint was barred by the “voluntary payment doctrine.” As the court explained, the “doctrine places upon a party who wishes to challenge the validity or legality of a bill for payment the obligation to make the challenge either before voluntarily making payment, or at the time of voluntarily making payment.” The court acknowledged that there are three exceptions to the doctrine – for fraud, duress, or mistake of fact – and agreed with the trial court that none of those exceptions applied here, where the plaintiffs paid the invoices without protest. Despite the plaintiffs’ claims that this construction of the doctrine would effectively render Wisconsin’s anti-cramming statute meaningless, the court found that the plaintiffs must secure relief from the legislature, because the court must follow the voluntary payment doctrine in its current form. MBS-Certified Public Accountants, LLC v. Wisconsin Bell, Inc., Wis. Appeal No. 2008AP1830.