• On November 16, 2010, the US District Court for the Northern District of California granted a motion to dismiss filed by Google and HTC and a motion to compel arbitration filed by T-Mobile in a putative class action claiming that the Nexus One mobile phone (or Google Phone) is defective by not maintaining connectivity to T-Mobile’s 3G mobile network. Before turning to the merits, the court first sided with T-Mobile in applying Pennsylvania law based on the language of the T-Mobile customer agreement, which provided that Pennsylvania law will apply to this dispute regarding a Pennsylvania resident’s purchase of a phone in that state. Because Pennsylvania substantive unconscionability law is more tolerant of T-Mobile’s arbitration provisions than California’s, the court granted T-Mobile’s motion to compel arbitration. Turning to the other parties, the court agreed that Google, which designed the phone, and HTC, which manufactured it, could not be sued under the federal Communications Act because they are not “common carriers.” The court also agreed that the plaintiff’s state and federal law warranty claims are preempted by the Communications Act, finding that they were essentially “attacks on T-Mobile’s rates and market entry” which are issues subject to the FCC’s exclusive jurisdiction. The court granted plaintiff leave to amend her complaint against Google and HTC to address, for example, “actual defects of the Google Phone or its applications” which the court noted “do not challenge a carrier’s rates or market entry and hence would not be preempted.” McKinney v. Google, Inc., No. C 10-01177 JW (N.D. Cal.).
  • On November 15, 2010, the US Supreme Court denied, without opinion, petitions for writs of certiorari filed by Core Communications and state public utility commissions seeking review of the DC Circuit’s January 2010 affirmance of the FCC’s November 5, 2008 order applying pricing rules for the termination of telecommunications traffic to Internet Service Providers. Core and the state commissions challenged the FCC’s authority to set those rates under sections 251 and 252 of the Communications Act and Supreme Court precedent limiting the FCC’s role in setting rates to establishing the methodology. Core Communications, Inc. v. FCC, No. 10-185; Pennsylvania Public Utility Commission v. FCC, No. 10-189.